The United States offers asylum and refugee protection to qualified applicants who are unable or unwilling to return to their country of nationality because of persecution or a well-founded fear of persecution. Claims of persecution must be based on at least one of five internationally recognized grounds: race, religion, nationality, membership in a particular social group, or political opinion. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") also provided that some actions taken under coercive population control programs constitute persecution on account of political opinion. A maximum of 1,000 aliens per fiscal year may be granted asylum or admitted as a refugee under this provision.
In addition to asylum and refugee protection, withholding of removal is available to individuals in the United States who can show a likelihood their lives or freedom would be threatened if they were returned to the country in question. Withholding of removal is in some ways similar to asylum, but is governed by a higher standard, requiring applicants to establish that it is more likely than not that they would be persecuted. Unlike asylum, however, once this standard is met, there is no discretion to deny withholding and the applicant may not be returned to that country.
Asylum and refugee applicants are both adjudicated under the same legal standard, but differ in terms of where they are located. The potential asylee is in the United States or applying for admission at a port of entry, and the potential refugee is outside the United States. Aliens in the United States must file an asylum application within one year after the alien's arrival in the United States, unless there exist changed circumstances affecting the applicant's eligibility for asylum, or extraordinary circumstances which justify the delay in filing. People overseas who are eligible for consideration by the U.S. refugee program apply by filing a Registration for Classification as a Refugee.
An alien who is in the United States and who is not in immigration proceedings may apply to the U.S. Bureau of Citizenship and Immigration Services ("BCIS") for asylum. Asylum claims filed before an alien is in USCIS physical custody are "affirmative" applications filed voluntarily by the alien. If an asylum officer denies the asylum application of an alien in lawful status, the applicant can reapply for asylum before an immigration judge if he/she is later placed in removal proceedings. Affirmative asylum applicants are not placed in detention while their application is considered.
The Executive Office for Immigration Review ("Immigration Court" or "EOIR") has exclusive jurisdiction over the cases of aliens who are placed in removal (deportation) proceedings and then seek asylum. Asylum claims filed before EOIR are "defensive" applications raised in removal proceedings before immigration judges as a defense against removal. Aliens who seek asylum as a defense against removal may be detained for being in the United States illegally until an immigration judge rules on their asylum claim.
U.S. law mandates that aliens who arrive at a U.S. port of entry without travel documents or who engage in fraud or material misrepresentation be detained and placed in expedited removal. Aliens who express or indicate a fear of persecution during the expedited removal process receive a "credible fear" interview with an USCIS asylum officer. Aliens found to have a credible fear are referred for ordinary removal proceedings in which they may apply for asylum before an immigration judge. Aliens determined to have a credible fear are detained because they remain in removal proceedings until an immigration judge rules on their asylum claim.
USCIS district directors have discretionary authority to parole, or release, an alien in proceedings from detention. In determining whether release is appropriate on a case-by-case basis, district directors must decide whether the alien's release would serve an urgent humanitarian need or significant public benefit and whether the alien has established his/her identity, poses a threat to the community, demonstrates family ties in the community, presents evidence of a credible asylum claim, or poses a risk of flight. Different, more restrictive criteria govern the custody of certain criminal aliens.
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Access to the U.S. refugee program is not open-ended. To file a Form I-590 application as a refugee, a refugee applicant must first be found to be eligible for a refugee interview. The question of whether applicants are eligible for a refugee interview is governed by their nationality and whether they come under one of the processing priorities used to manage the U.S. refugee program. The designation of eligible nationalities and processing priorities is decided annually.
Traditionally, refugee applicants are interviewed in third countries after having fled their country of persecution. Individuals who have fled their country and believe themselves to be at risk if returned should contact the nearest office of the United Nations High Commissioner for Refugees (UNHCR). That office will make a decision as to whether the individuals require protection and where that protection may be provided. The U.S. legal definition of refugee also allows for in-country refugee processing in countries so designated by the President.