Lately, I’ve been discussing the history of the very old defense of “asylum.”  Today I would like to talk a little more about asylum.

I mentioned that asylum is a defense in immigration law that a person must apply for before they have been in the United States for a year.  There are some exceptions to this, for example if a person was very sick or had very traumatic life experiences, like the death of a loved one, then that person could request that the government accept late his or her application. Additionally, if circumstances change in a person’s home country, it may be possible to apply for asylum after the person has been in the United States for a year.

For example, let us assume someone was from the Ukraine.  Let us assume that the person came to the United States as a student, stayed here for two years, and then a war broke out in Ukraine two years after that person left.  Would it still be possible for him or her to apply for asylum, even though they had been in the United States for more than one year?  The answer is yes.  It would still be possible for that person to apply for asylum in the United States at the two-year point if that person could prove that he or she would be in danger after returning to the Ukraine because of the war.  Obviously, the war would have dramatically changed the circumstances in the Ukraine.  This is what we immigration attorneys call the “changed circumstances exception.”

But how does a person WIN an asylum case?  That person first has to prove that they are a “refugee.”  This requires proving with evidence and testimony that he or she suffered past persecution or has a very real fear of future persecution in his home country.  However, this persecution that the person might suffer must be persecution for five possible reasons:

  1. Race
  2. Religion
  3. Nationality
  4. Political Opinion
  5. Particular Other Social Group

The first three are quite obvious, but the last two are a little harder to define.  It is often easy to tell what is someone’s religion.  But it is often difficult to prove what his or her political opinion may have been.

Of all these different reasons, the most difficult one to define is “other social group.”  What does this mean?  Many different immigration lawyers and judges have different ideas about this, and to be honest, this is the argument that I make the most often for my clients in asylum cases, that my clients have some fear of future persecution or have suffered persecution in the past because of the particular social group from which they come.  There are many different possible examples of particular social groups.

Thanks for reading!  I will continue to discuss asylum in more detail in the future.