Eligibility For Asylum
People who can prove that they will be persecuted if they are returned to their home country can apply for asylum in the United States. Much persecution is based on race, religion, and politics, but there are other reasons as well. Students are frequently targeted for persecution, particularly if they choose to engage in social or political activism. Women in some countries may be subject to severe punishment (including execution) simply for having a baby out of wedlock. Homosexuals are persecuted in a number of countries, especially those in which religion is an integral part of the government.
People with a criminal record including aggravated felonies (serious crimes such as rape and murder) are generally not eligible for asylum, nor are those who have been found guilty of subversive activity against government agencies. Waivers are difficult to obtain; a person would need to provide substantive and irrefutable proof that he or she had been wrongfully or falsely charged by his or her government. Those who have communicable diseases or who have physical or mental disorders are ineligible for asylum unless they can provide proof that their condition is either cured or under control. Some people come to the United States to seek better job opportunities. Those people are not candidates for asylum; they are required to follow standard immigration procedures.
A person can seek asylum in the United States either through affirmative asylum or defensive asylum. In affirmative asylum, the person applying submits the proper paperwork (known as Form I-589) to the BCIS and is called to appear before an asylum officer for an interview. In defensive asylum, the person in question has been placed in removal proceedings by the Immigration Court and has to appear before an immigration judge from the Executive Office for Immigration Review (EOIR). Those who seek defensive asylum include undocumented aliens who have been caught entering the country illegally, but who also may be genuinely afraid of being persecuted if they are sent home. (Asylum officers often refer undocumented aliens to EOIR for a defensive hearing if they feel that the fear of persecution is credible.)
Article 3 of the United Nations Convention Against Torture (1999) states that no asylum seeker can be returned home if the threat of torture is strong enough. The BCIS does have the option, however, of sending an unsuccessful asylum seeker to a third country in which there is no danger of torture or persecution.