Asylum in the U.S. may be granted if the applicant can demonstrate a “well-founded fear of persecution” based on (1) political opinion, (2) religion, (3) race, (4) nationality, or (5) membership in a particular social group. A person who is outside the U.S. may apply for refugee status based on these same criteria.  The Refugee Act of 1980 conforms US immigration laws with various UN conventions and protocols.

The fear of persecution must be either by the government of one’s country or by a group that the government is unable or unwilling to control.

If the person is able to establish “past persecution”, a presumption arises that he has established a well-founded fear of persecution. The burden of proof shifts to the government to demonstrate that circumstances have changed and that the person no longer has a well-founded fear of persecution or that the person could avoid persecution by relocating in another part of his country and that it would be reasonable for him to do so.

If a person is in lawful immigration status, he can submit his application for asylum (Form I-589) directly with the USCIS. Should his application be denied, he will remain in status. However, if he in not in lawful status, should his application not be approved by the USCIS, it will be referred to an Immigration Judge.

If a person is in removal proceedings before an Immigration Judge, he may also be eligible to apply for withholding of removal and for relief under the Convention Against Torture (CAT). However, in order to qualify for withholding of removal, the person must demonstrate that it is more like than not that he will be persecuted if he is forced to return to his country. This is a higher standard than the “well-founded fear” standard for asylum which can be met if the person has at least a 10% chance of being persecuted. Also, unlike asylum, obtaining withholding of removal or relief under CAT does not necessarily lead to permanent residence in the U.S.

Under Convention Against Torture (CAT), the six elements of “torture” are as follows:

  1. An intentional act;
  2. Infliction of severe pain or suffering;
  3. Under the custody or control of the offender;
  4. For a broad array of wrongful purposes;
  5. By or sanctioned by a public official; and
  6. Not arising out of lawful sanctions.

If the government can demonstrate that the person has “firmly resettled” in a 3rd country, the person is ineligible for asylum, withholding of removal and CAT.

Although generally a person must apply for asylum within one year after arriving in the U.S., there are some notable exceptions to this rule.


asylum “I can honestly say that Mr. Carl Shusterman and his team are probably the best in the business when it comes to immigration matters. Carl’s greatest asset is his prior work experience as a former INS prosecutor. My family and I were on the verge of being deported from the United States. Because of Carl’s expertise and dedication, not only are we allowed to remain in this country permanently but are on path of obtaining citizenship…” (More client reviews…)


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  • Asylum: Winning Your Case
    A person with a “well-founded fear” of persecution if they return to their home country may apply for asylum before the USCIS. A person in removal proceedings may apply for asylum before an Immigration Judge.