Affirmative Asylum 

Generally, jurisdiction over an asylum application is determined by whether or not the applicant is in removal proceedings. An asylum-seeker who is not in removal proceedings applies for asylum affirmatively with the USCIS asylum office regardless of whether they entered the United States with permission or remains in lawful status. If USCIS declines to approve the asylum application and the applicant is not in some form of lawful immigration status, the application is referred to the immigration court and removal proceedings commence. At this point, jurisdiction over the asylum application shifts to the immigration court.

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Elements of Asylum 

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Individuals may qualify for asylum if they can prove: 1. a well-founded fear 2. of persecution 3. perpetuated by the government or an entity the government cannot or will not control 4. on account of 5. one of the five protected grounds

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Well-Founded Fear of Persecution 

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The courts have held that “a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution. Persecution is usually physical but can also be emotional or psychological.

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Perpetuated by The Government or An Entity The Government Cannot or Will Not Control 

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The government generally includes the police, the military, and government-run schools. The government, for the purposes of asylum law, also includes government-sponsored groups. Groups that the government is unable or unwilling to control often encompass guerrilla and paramilitary groups and gangs.

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On Account of One of the Five Protected Grounds 

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• Race

• Religion

• Nationality

• Membership in a particular social group

• Political opinion

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