More than 11,500 people fled India in the last 12 months. Of those, more 3,400 came to the US seeking asylum. Indian nationals, like any other foreigners, have the right to file for asylum in the United States. In this post, we will discuss how to seek asylum in the USA from India.
Seeking Asylum From India
Asylum is a type of protection that the US government grants a foreign national who is persecuted in their home country. Indian nationals who are afraid to return to the India due to past or potential future persecution may apply for asylum.
Once an Indian national is granted asylum they can stay in the United States and are given a US green card and even have a path to future citizenship. Asylum seekers from India must meet specific criteria to be granted asylum status.
Individuals who fear returning to India have several possible options or ways to apply for asylum. In general, Indian nationals who demonstrate past or future potential persecution, and who are targeted due to their race, religion, nationality, membership in a particular social group, or due to their political opinion, are eligible for asylum.
India is a very diverse country with many different political groups, religious and ethnic groups, as well as a multitude of country conditions that could impact an individual. Securing asylum in the United States can be difficult if you do not prepare your case in a way that is clear and understandable.
If you are from India and are afraid to return to your country due to some form of persecution, it is important to discuss your case with an attorney to determine the strength of your case and to make sure that you accurately and correctly explain the issues affecting you in India.
Asylum Eligibility For Indians
Indian nationals, like any other foreign national has the right to apply for asylum in the United States. However, a successful asylum application must establish or meet the following specific criteria:
- An Indian national must establish that they have credible fear of return to India due to past or future persecution;
- The persecution MUST be due to one or more factors including the applicant’s race, religion, nationality, membership in a particular social group, and/or their political opinion;
- The persecution must be carried out by the Indian government or a group that the government cannot or will not control; and
- The applicant must show that they cannot relocate to another part of India and be safe from the persecution.
It is important to remember that an Indian national applicant must show that they are victims of targeted past or future persecution. Persecution is a very serious level of harm and goes beyond harassment or generally poor country conditions.
Persecution often includes significant violence, physical harm, detention, kidnapping and possibly even the risk of torture and/or death. Poor country conditions, such as high crime, poor economic opportunities, or even conflict conditions, by themselves, are often not enough to be granted asylum.
The Indian national applicant must show that the persecution they suffered in the past, or will suffer in the future, specifically and personally targets them. For instance, an Indian national who can establish that he is being personally hunted by the government and/or greater community because of his political opinion or his religious beliefs, may have grounds for a good asylum case.
An experienced immigration attorney with familiarity regarding India country conditions and Indian asylum applicants can help an applicant prepare and present their case in the best possible fashion. Although an attorney is not required to file for asylum, it is strongly recommended.
Indian Nationals Affirmative and Defensive Asylum Application Types
An Indian national can face more than one option for applying for asylum, namely the affirmative or defensive asylum application process. An Indian national who is physically in the United States and who is NOT in removal proceedings can submit an affirmative asylum application.
This means that the asylum application is sent to U.S. Citizenship and Immigration Services (USCIS) who will grant an interview with a USCIS officer at a designated date and time. USCIS may grant asylum after the interview. However, USCIS may refer the case to immigration court if they decide that they cannot rule on the application.
It is always best to try and secure a grant of approval at the USCIS level. It can often be more difficult to secure a grant of asylum in immigration court. Because an Indian national’s case can be complex, especially given potential complicated social and political conditions leading to the persecution in India, applicants should ensure that they present the strongest case possible via the affirmative application process.
It is also important to note that USCIS will only refer a case to court if the applicant does not have any other legal status in the US via some other type of visa. If an applicant has a viable US visa (student visa, employment visa, visitor visa, etc.) then the asylum application will be rejected by USCIS and the applicant will have to leave the country once their visa expires.
An Indian national in removal proceedings must utilize the defensive asylum process. An Indian national without legal status in the US may end up in removal/deportation proceedings; if so, they can apply for asylum via the defensive asylum process if they have a fear of persecution in India. In addition, an Indian national can also petition for asylum when they reach a US port of entry.
Once there, the Indian national would have to let a border official know they would like to seek asylum. At that point they will be assessed and will go through a defensive asylum process.
Application Timeline and Forms for Indians
An asylum application process can anywhere from a few months to several years. Indian nationals who apply for asylum should ensure that they are prepared for either a quick resolution or the potential to wait for years to have their case decided.
The geographic location where an application is submitted can also impact the timeline. Some areas of the country see more applications which can impact the length of time before an application comes before an immigration judge or a USCIS officer.
Affirmative applicants who are referred to court, may face additional years before their case comes before an immigration judge. Additionally, appeals of denied cases can extend case timelines even further. An experienced immigration attorney can best explain the timeframes in their areas and establish realistic expectations for an applicant.
Asylum applications generally include required forms and evidence of the applicant’s story or experience, as well as country conditions evidence. The following forms and documentation should be included in a strong asylum case:
- Form I-589, Application for Asylum and for Withholding of Removal I-589 and required documents as listed on the instructions for the I-589;
- A personal statement;
- As much relevant supporting evidence as possible;
- Legal argument written by the attorney (if applicable);
- And a thorough Country Conditions section.
The application form and associated documentation needed for a winning asylum case is not always clear. The presentation of the case, evidence and country conditions, can especially vary between affirmative and defensive cases.
Applicants should retain an attorney with experience in the specific type of asylum case they have. Immigration attorneys can assist in compiling the strongest case possible depending on whether the case will be presented before USCIS or in immigration court. The difference in venue can change the type and format of the documents presented.
Country Conditions in India and Asylum in the USA
Country conditions in India that can impact Indian nationals and result in persecution can be particularly complex. India has a multitude of religions, ethnic groups, political parties, as well as areas of the country with issues related to conflict and terrorism risks.
Sometimes a combination of these factors can impact an Indian national and their dependent(s). The government of India has historically been dominated by two major political parties, the Bharatiya Janata Party (BJP) and the Indian National Congress, also knowns the Congress Party. In addition, a multitude of additional political parties align themselves with major and minor parties to create voting blocks.
For individuals who face persecution from political entities, it is important to ensure that these complicated alliances are accurately described, especially as they can show a greater risk to an individual. It is also important that any Indian asylum applicants does not have any ties to designated terrorist organizations. Any such ties will disqualify an applicant for asylum.
Similarly, some individuals can face religious or even ethnic persecution in India. India is a very diverse country. Although Hindus (religion) make up nearly 80% of the population, there are large populations or Muslims as well as all Christians, Sikhs, Buddhists, tribal religions, and others.
Every major religion is represented at some level in the country. Ethnic demographics are also considerable in India. Ethnic Hindis make up over 43% of the population with the rest comprised of more than 2,000 other ethnic groups. Indian nationals who seek asylum based on their religious or ethnic status must explain their situation accurately.
In addition, religious and ethnic groups are often associated with various powerful political groups, often increasing risks for a targeted individual. It is very important that Indian nationals applying for asylum speak with a lawyer who is familiar with India and country conditions.
Country Conditions Section of an Asylum Application
Whether an Indian national applies for asylum via the affirmative or defensive process, their application should include a Country Conditions section. In this portion of the application, it is best to include reports, media articles, as well as other resources that clearly help to show that the factors leading to the claimed persecution exist in India.
A robust Country Conditions section provides context and helps to evidence a case, showing that media articles and other reports and assessments have noted the country conditions issues that led to the type of persecution the asylum applicant is claiming.
An attorney familiar with Indian asylum applications and country conditions in India will be better able to assist in creating the critical Country Conditions section of an application.
Asylum in the USA from India FAQs
Can an asylum applicant include family members who are still in India to their asylum application?
Unfortunately, an asylum applicant and all dependents put on their case must be physically in the United States to be able to apply for asylum together. However, in some instances, family members may come to the United States after the initial application is submitted. If that happens, an asylum applicant can add their immediate family members such as a spouse or underage child to their case.
Does an Indian asylum applicant have to have an attorney for either an affirmative or defensive asylum application process?
Asylum applicants are not required to have an attorney to apply for asylum, whether they are applying by an affirmative or defensive asylum application process. However, an attorney is highly recommended for Indian nationals applying for asylum. Asylum applications from Indian nationals can be particularly complicated, especially given the complex nature of country conditions and asylum associated factors in India. An attorney can be extremely helpful in preparing a clear and strong asylum application. In addition, the defensive asylum application process can be particularly difficult to navigate without an attorney. Since the defensive process is heard by an immigration judge in immigration court, it is best to have an experienced attorney to speak on behalf of the asylum applicant.
Can an Indian national attend school in the US while their asylum case is pending?
An Indian national and their dependents who have applied for asylum technically have a legal status in the US while their case is pending. This means that an Indian national and the dependents on his case can attend school while their case remains under consideration and in process. Applicants and their dependents are allowed to attend grade school, higher education, or other education/training institutions.
It is important to note here that applicants should ensure that they do not inadvertently take part in paid internships or work-study programs as part of their education program. An applicant cannot receive any type of payment, even within their education program, BEFORE an asylum applicant secures a work permit. Any work without a work permit can jeopardize an applicant’s asylum case.
