Ustun Law Group, PLLC

Asylum in the United States

Modern international refugee protection efforts grew from the ashes of Europe in World War II, bringing together nation-states through the United Nations to offer asylum to refugees uprooted from the war. Every year people come to the United States seeking protection because they have suffered persecution or fear that they will suffer persecution due to:

  • Race
  • Religion
  • Nationality
  • Membership in a particular social group
  • Political opinion

When can I apply for Asylum?

  • You may only apply for asylum if you are arriving in or already physically present in the United States.
  • To apply for asylum in the United States, you may ask for asylum at a port-of-entry (airport, seaport, or border crossing)
  • If you are already in the United States, you may file Form I-589, Application for Asylum and for Withholding of Removal, at the appropriate Service Center
  • You may apply for asylum regardless of your immigration status, whether you are here legally or illegally
  • You must also apply for asylum within one year of your last arrival in the United States
  • You must apply for asylum within a reasonable time given the circumstances
  • Changed or extraordinary circumstances may include certain changes in the conditions in your country, changes in your own circumstances, and other events.
  • For a non-exhaustive list of circumstances that may be considered changed or extraordinary circumstances, see 8 CFR § 208.4.
  • Asylum officers also rely on case law to adjudicate asylum claims.  Administrative decisions made by the Board of Immigration Appeals can be found at http://www.usdoj.gov/eoir.

 

What are the different types of Asylum?

There are two ways of obtaining asylum in the United States

  1. Affirmative Asylum Processing with USCIS:
  • To obtain asylum through the affirmative asylum process you must be physically present in the United States
  • You may also apply for asylum status regardless of how you arrived in the United States or your current immigration status

You must apply for asylum within one year of the date of their last arrival in the United States unless you can show:

  • Changed circumstances that materially affect your eligibility for asylum or extraordinary circumstances relating to the delay in filing
  • You filed within a reasonable amount of time given those circumstances

2. Defensive Asylum Processing with EOIR

  • A defensive application for asylum occurs when you request asylum as a defense against removal from the U.S.
  • For asylum processing to be defensive, you must be in removal proceedings in immigration court with the Executive Office for Immigration Review (EOIR)

Immigration Judges hear defensive asylum cases in adversarial (courtroom-like) proceedings. The judge will hear arguments from both of the following parties:

  • The individual (and his or her attorney, if represented)
  • The U.S. Government, which is represented by an attorney from Immigration and Customs Enforcement (ICE)

The Immigration Judge then decides whether the individual is eligible for asylum. If found eligible, the Immigration Judge will order asylum to be granted. If found ineligible for asylum, the Immigration Judge will determine whether the individual is eligible for any other forms of relief from removal. If found ineligible for other forms of relief, the Immigration Judge will order the individual to be removed from the United States. The Immigration Judge’s decision can also be appealed by either party.

What is the key difference between the two?

Affirmative Defensive
The individual has not been placed in removal proceedings before an Immigration Judge The individual has been placed in removal proceedings before an Immigration Judge
Individual affirmatively submits Form I-589 to USCIS Individual:

  • Is placed in removal proceedings by an Asylum Officer;
  • Is placed in removal proceedings for immigration violations; or
  • Tried to enter the United States without proper documents and was found to have a credible fear of persecution or torture

If the individual was referred by USCIS, the asylum application already filed will carry over to the immigration judge. If the individual did not yet submit an asylum application he or she will submit it to the Immigration Judge.

The individual appears before a USCIS Asylum Officer for a non-adversarial interview The individual appears before an Immigration Judge with the Executive Office for Immigration Review for an adversarial, court-like hearing
Individual must provide a qualified interpreter for the asylum interview The Immigration Court provides a qualified interpreter for the asylum hearing and all other court proceedings.

 

How long does the process take?

  • For asylum applications filed on or after April 1, 1997, the Immigration and Nationality Act (INA) states that the initial interview should take place within 45 days after the date the application is filed
  • A decision should be made on the asylum application within 180 days after the date the application is filed unless there are exceptional circumstances. See INA section 208(d)(5).

As of Jan. 29, 2018, the USCIS Asylum Division is scheduling interviews in the following order of priority:

  • First priority:  Applications that were scheduled for an interview, but the interview had to be rescheduled at the applicant’s request or the needs of USCIS;
  • Second priority: Applications that have been pending 21 days or less since filing;
  • Third priority: All other pending affirmative asylum applications will be scheduled for interviews starting with newer filings and working back towards older filings.
  • Workload priorities, including those related to border enforcement, may affect our ability to schedule all new applications for an interview within 21 days.
  • Asylum office directors may consider, on a case-by-case basis, an urgent request to be scheduled for an interview outside of the priority order listed above

Please note: There are no fees to apply for Asylum

Can anyone help me with my asylum interview?

  • You have a right to bring a lawyer or representative to your asylum interview and to immigration proceedings before the Immigration Court, at no cost to the United States Government
  • You may also obtain a list of pro bono (free or reduced cost) attorneys and community-based, non-profit organizations

Options for acquiring pro bono lawyer:

Am I eligible to work as an asylee?

You cannot apply for permission to work (employment authorization) in the United States at the same time you apply for asylum if you meet certain conditions. You may apply for employment authorization if:

  • 150 days have passed since you filed your complete asylum application, excluding any delays caused by you (such as a request to reschedule your interview) AND
  • No decision has been made on your application

However, If you are granted asylum you may work immediately. EAD is not necessary to work if you are an asylee

May I eventually file for a green card?

You must also submit a separate I-485 application packet for yourself and, if applicable, for each family member who received derivative asylum based on your case. Please refer to the section about Green Cards for Asylees

Please Note: This blog should not be used as a substitute for obtaining legal advice from an attorney licensed or authorized to practice in your jurisdiction.