Asylum, Refugee, and Humanitarian Parole

Since its inception, the United States has been a safe haven, where persecuted individuals from around the world can come seeking sanctuary.  From our Founding Fathers to the founders of Google and Intel, immigrants fleeing persecution have built this country. Those fleeing dangerous conditions in their home country can seek protection in the United States as asylees, refugees, or through humanitarian parole.

Under the United States’ international obligations and domestic immigration law, immigrants cannot be returned to their home countries if they would be subject to persecution or suffer torture at the hand of their government.  To qualify for asylum, you must be unable or unwilling to return to your country because you have been persecuted in the past or have a well-founded fear of persecution because of your political opinion, religion, race, nationality, or membership in a particular social group.  With some exceptions, you must apply for asylum within one year of entering the United States.

If you are inside the United States and are either in lawful status, overstayed your status, or entered illegally you can affirmatively apply for asylum with US Citizenship and Immigration Services (USCIS) by filing form I-589. The general categories of people eligible for asylum or withholding of removal are those who will be or have been persecuted because of one of the following categories:

1.         Religion

2.        Ethnicity

3.        Nationality

4.        Political opinion

5.        Membership in a particular social group

Asylum seekers may apply either when they arrive in the United States, or after they enter.  In order to be able to be eligible for Asylum you must apply within one year of your entry into the US, although there are exceptions such as if you were in legal status, were a minor when you entered, or even if you suffered from Post-traumatic stress disorder (PTSD). 

Individuals who fail to file within one year and don’t qualify for an exception are ineligible for asylum but may still apply for withholding of removal.  Although the requirements are generally the same, asylum status is more beneficial for a variety of reasons.  Asylees are able to adjust to permanent residency and get their green cards, therefore being placed on the path to citizenship.  Asylees can also sponsor spouses and children if they remain overseas.

When you apply affirmatively with USCIS they have the power to either approve your application for asylum or refer your case to the Executive Office for Immigration Review (EOIR) to be heard by an immigration judge.

If your case is referred to the EOIR you’ll have the opportunity to not only apply for asylum but for Withholding of Removal under the United Nations Convention Relating to the Status of Refugees (Withholding), and Deferral of Removal under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). While these forms of relief allow you to remain in the United States and receive work authorization, they do not allow you to travel overseas, bring your family members to the United States, of gain lawful permanent residency.  It is possible however to change from Withholding or CAT to lawful permanent residency in the future.

Although Withholding and CAT are harder to establish eligibility for, they protect people who would otherwise be ineligible for asylum due to failing to apply within one year, not falling into a protected category of victim, or crimes they’ve committed.

Fleeing persecution can often mean facing the difficult decision of leaving your family overseas.  If you have been approved for asylum or refugee status you have the right to bring your spouse and children under 21 to the US through an I-730 Refugee/Asylee Relative Petition.  Form I-730 can be filed for family members overseas or for those living in the US who weren’t included on the original application. This application must be filed within two years of you receiving your asylee or refugee status.

In exceptional circumstances, adult unmarried children, orphans, or disabled relatives can also be brought to the US for protection under Humanitarian Parole by filing form I-131.  Humanitarian Parole is a discretionary form of relief for emergency humanitarian cases.  Humanitarian Parole is decided solely on a case by case basis, and there is no requirement for eligibility other than there be an emergent humanitarian reason for a travel document to be issued.

Successful cases very widely in their circumstances.  Those handled by Ms. Rosché have included severely disabled siblings of US citizens, adult children of asylees and refugees who remain in danger in the home country but were over 21 when their parents’ applications were filed, young children of Lawful Permanent Residents who are unable to safely wait in their home country for their priority date to become current, and elderly and infirm parents of LPRs who were too ill to wait for normal processing times.  Once in the US the beneficiary of the Humanitarian Parole is allowed to receive work authorization and can apply for asylum or other immigration benefits, or renew their Humanitarian Parole indefinitely so long as the humanitarian or public policy reason for granting the application continues to exist.