Asylum is both an affirmative relief which means one can apply for asylum without being in removal. It is also defensive when the applicant is already in removal proceedings. One must first be a refugee to qualify for asylum.
Refugee as defined by the INA is any person who is outside any country of such person's nationality or in case of a person having no nationality, is outside any country in which such person has last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
Under §208(b) of the INA, the Immigration Judge may, in his or her discretion, grant asylum to an individual who qualifies as a "refugee" within the meaning of INA §101(a)(42). The definition includes the requirement that the asylum applicant demonstrate that he or she is unwilling or unable to return to his or her home country because of past persecution or a "well-founded fear" of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
The asylum applicant's burden of proof is to demonstrate that there is a "reasonable possibility" that he or she will be persecuted. An applicant for asylum may establish a "well-founded fear" by showing that a reasonable person in his or her circumstances would fear persecution.
Asylum also provides more permanent protection than withholding of removal. A person granted asylum, known as an "asylee," may apply for permanent residency after one year under INA §209 and may eventually become a U.S. citizen. An asylee may also bring his or her spouse and children to the United States.
