Asylum In The United States

Asylum eligibility check list:

1. A person must show that they have a credible fear of return to their country of nationality due to past or future persecution;

2. 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;

3. The persecution must be carried out by the government or a group that the government cannot or will not control;

4. 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.

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.

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:

1. 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.

2. Once the application is received by the requisite USCIS office, then a receipt notice will be sent to the applicant.

3. Next, a bio metrics appointment notification will be sent to the applicant letting them know when and where to go to do their fingerprinting.

4. Finally, an asylum interview will be scheduled, where the applicant will go over their case, present evidence, and answer questions relevant to the case.

5. 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.

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.