Who is Eligible for Asylum in the United States?
Anyone can apply for asylum in the United States. This means that any foreign national can submit an application for asylum. However, this does not mean that everyone who applies will qualify for a grant of asylum. An asylum lawyer can review your case and help you determine the best path forward for asylum.
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How Do I Apply For Asylum in The United States?
Asylum eligibility check list:
A person must show that they have a credible fear of return to their country of nationality due to past or future persecution;
This persecution MUST be due to the applicant’s race, religion, nationality, membership in a particular social group, or political opinion. The persecution could also be due to more than one of the aforementioned factors;
The persecution must be carried out by the government or a group that the government cannot or will not control;
The applicant cannot relocate to another part of the home country and be safe from persecution.
It is not enough to demonstrate that conditions in the home country are inferior. Generally, poor country conditions, such as high crime, poor economic opportunities, or even conflict conditions, by themselves, are not enough for someone to be granted asylum. An applicant must demonstrate that they were personally targeted for one or more of the factors listed above. If there is no personal targeting or persecution, the applicant will not be eligible for asylum.
The eligibility criteria can be complicated for applicants to understand and even more difficult to demonstrate. An experienced immigration attorney 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. Winning asylum is difficult and, in recent years, the asylum process has become more complicated.
Asylum Application Types
There are several ways to apply for asylum. There is an affirmative asylum application process and a defensive asylum application process. The affirmative asylum process is when an alien, located in the US, submit an application for asylum and they are NOT in removal proceedings. This application is sent to, and first assessed by, U.S. Citizenship and Immigration Services (USCIS). USCIS may grant asylum after an interview. However, if USCIS decides they cannot rule on the application, they will refer the case to immigration court. If that happens, the applicant will be required to present their case to an immigration judge. It is 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.
A defensive asylum process is when a person petitions for asylum while they are in removal proceedings. This petition is adjudicated by an immigration judge. USCIS does not have a role in this type of asylum application process. This type of application process generally occurs when an alien is put into removal proceedings because they do not have legal status in the US. At this point, the alien can petition for asylum, if they have a fear of persecution in their home country. In addition, an asylum seeker can also petition for asylum upon reaching a US port of entry. Once an asylum seeker lets a border official know they would like to seek asylum, they will be assessed and will go through a defensive asylum process.
Affirmative Asylum Application Process
An alien is in the US who is not in removal proceedings -- but has a credible fear of persecution in his home country -- can apply for asylum through the affirmative asylum process. The affirmative asylum process has the following several steps:
The applicant must complete form I-589, Application for Asylum and for Withholding of Removal, and submit/send the application, along with required documents, to USCIS.
Once the application is received by the requisite USCIS office, then a receipt notice will be sent to the applicant.
Next, a bio metrics appointment notification will be sent to the applicant letting them know when and where to go to do their fingerprinting.
Finally, an asylum interview will be scheduled, where the applicant will go over their case, present evidence, and answer questions relevant to the case.
After the interview, the applicant will have to wait until USCIS renders a decision. This can take a few weeks, months, or on occasion even years.
When filing an affirmative asylum application, an individual should keep in mind that applicants have 1 year from the time they enter the US to file for asylum. An applicant who files after the 1-year bar must demonstrate that there were “extraordinary circumstances” that excuse the delay of the application. In such cases, the applicant must show that the extraordinary circumstances directly related to the reason for the late application and that the applicant did not directly cause the extraordinary circumstances. Evidence will be required to demonstrate the extraordinary circumstances. Applicants who face the 1-year bar should consult with an attorney prior to filing their application. An experienced immigration attorney can help an applicant make sure that they present a clear explanation for the exceptional circumstances that resulted in a late asylum application.
In addition, it is also a good idea to have an immigration attorney attend the asylum interview with USCIS. While an attorney is not required at the interview step, and they cannot take part in the interview directly, they can observe the process. Often, the presence of an attorney helps to ensure that USCIS officers conduct the interview process accurately and respectfully.
Defensive Asylum Application Process
Individuals who are in removal proceedings can apply for asylum through the defensive asylum application process. This application process is basically a claim of asylum as a defense against removal from the country.
Whether an alien is picked up by immigration officers or if they present to officials at a point of entry, the individual must declare their claim of asylum. They will then be given a credible fear interview. During this interview, an officer will determine if the alien demonstrates credible fear of returning to their country. If, and when, the applicant passes this interview, they will complete Form I-589, Application for Asylum and for Withholding of Removal, gather evidence, and prepare for their court date before an immigration judge. Immigration court and the defensive asylum process are complicated and can be very difficult to navigate. Applicants should retain an experienced immigration attorney to assist them through the defensive asylum process. Although an immigration attorney is not mandatory, the chances of winning a case are significantly higher if an attorney is involved.
The initial asylum application process can take anywhere from a few months to years. 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. While the government has attempted in recent years to implement a process by which more recent applications are adjudicated first, or within a few months, some areas have not been able to maintain this process due to the increased numbers of applications.
As such, there are areas of the country where asylum applicants may wait for years before their affirmative or defensive applications are adjudicated. Affirmative applicants who are referred to court may face additional years before their case comes before an immigration judge. Asylum is not a quick process and applicants should prepare themselves for a long potential wait for their case to be heard and/or decided. Additionally, appeals of denied cases can extend case timelines even further. An experienced immigration attorney can best explain the time frames in their areas and establish realistic expectations for an applicant.
Anyone can apply for asylum; however, everyone does not qualify for asylum. Many people think that they can win asylum in the US if they can show that general conditions in their home country are bad. People think that if they explain that their country has high crime, poor economic opportunities, or even conflict conditions, then that is enough for asylum. Unfortunately, this is usually not enough to win asylum in the US.
To be eligible for asylum you must meet the following specific criteria:
- You must have been persecuted in the past OR you must fear persecution in the future;
- The persecution must be from your country’s government OR from a group that the government cannot / will not control;
- The reason for the persecution MUST be because of one or more of the following - your race, religion, nationality, membership in a particular social group, or your political opinion.
If what happened to you does not meet these very specific criteria, you may not be eligible for asylum and you may not win your case. This is why it is very important to discuss your case with an immigration attorney before you file an asylum application.
No, you do not have to have an attorney to be able to file for asylum. Although an attorney is not required, it is strongly recommended. Winning asylum is difficult and in recent years the asylum process has only become more complicated. An immigration attorney, especially one that specializes in asylum, can make the difference to your case.
The application form and documentation needed for a winning asylum case is not often clear. Experienced immigration attorneys with experience in asylum can explain the best way to put together and present your case to USCIS. They also know and can explain common mistakes that applicants can make. This is especially important because attempting to try and fix or improve a case after an application has been submitted is very difficult. It is very important to complete the application forms correctly and accurately at the very beginning. A good immigration attorney can make sure that your asylum case is as strong as possible from the start.
In addition, it is also a good idea to have an immigration attorney attend your asylum interview with USCIS. While an attorney is not required at the interview step, and they cannot take part in the interview directly, they can observe the process. Oftentimes, the presence of an attorney helps to ensure that USCIS officers conduct the interview process accurately and respectfully.
If you are considering filing for asylum, there are several things to remember. First, you cannot file for asylum in the US if you are located in a foreign country. Second, applicants usually have 1 year from the time they enter the US to file for asylum. There are some limited exceptions to this 1-year requirement, so if you are here more than a year, you should discuss your application with an attorney.
If you are in the US and you have decided to file for asylum, the application process has the following several steps:
- You must complete the I-589 form and submit / send the application along with required documents to USCIS according to the instructions provided.
- You will then be sent a receipt notice for your application.
- Next, a biometrics appointment notification will be sent to you letting you know when and where to go to do your fingerprinting.
- Finally, an asylum interview will be scheduled.
- After the interview you will either be approved OR you will be referred to court. If you are referred to court, this means that you will have to go before an immigration judge to argue your case again.
There are additional possible steps and scenarios if your case goes into the court system. It is best to discuss these processes and options with an attorney to fully understand the asylum processes in those later stages.
The I-589 asylum application form provides instructions that explain what information and documentation is required to apply for asylum. However, there are additional documents and information that should also be included in your application that is not strictly required but would help to strengthen your case.
The following parts of an application should be included to have a strong asylum case:
- I-589 application form and required documents;
- Personal statement;
- As much relevant supporting evidence as possible;
- Legal argument written by your attorney (if applicable);
- And a thorough Country Conditions section.
It is important to keep in mind that there can be some variation of these parts depending on the immigration attorney. However, you should always ask your attorney exactly what they include in your case. If you think your attorney is not as thorough as you would like, or if they don’t provide services you would like for your case, you should find another attorney. Winning an asylum case can be difficult, so it is important that you have the right immigration attorney who is willing and able to do everything necessary to help you.
Yes, you can apply for asylum if you are undocumented or if you were convicted of a crime; however, there are some issues you may face. If you are undocumented, you can apply as long as you are not in removal proceedings. You also have 1 year from the time you enter the US to file for asylum. There are some limited exceptions to this 1-year requirement, so if you are here more than a year, you should discuss your application with an attorney. If you were convicted of a crime, you must disclose all crimes and associated details on your application and during your interview. The nature of your criminal conviction or the type of crime you were convicted of can bar you from being granted asylum. For a better understanding of what types of criminal convictions may not be granted asylum, review the relevant information on the USCIS website and/or contact an immigration attorney.