Asylum

Under U.S. law, people who flee their countries because they fear persecution can apply for asylum. If they are granted asylum, this gives them the right to stay in the United States. Asylum is a form of protection that allows an individual to remain in the US instead of being removed (deported). The two ways of obtaining asylum in the United States are through the affirmative process and defensive process.

Obtaining Asylum in the United States

Affirmative Asylum Processing with USCIS 
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

If you are seeking asylum in the United States, you must apply for asylum through the affirmative asylum process. To obtain asylum you must be physically present in the U.S. regardless of how you arrived in the United States. You must apply within one year of the date of your last arrival in the US unless you can show:

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

If USCIS does not have jurisdiction over your case, the asylum office will issue a Form I-863, Notice of Referral to Immigration Judge, for an asylum-only hearing. This implies that the judge holds a fresh hearing and delivers a determination that is independent of the decision reached by USCIS. If this applies to you, please see the section “Defensive Asylum Processing With EOIR”.

You may remain in the United States while your Form I-589 is being processed by USCIS. If you are ruled ineligible, you may remain in the United States while your case is being heard by an immigration judge.  While you await a decision on your application from USCIS, the applicant may request a work permit so they can work permit in the US and obtain their social security and driver’s license.

Defensive asylum application

To be eligible for the defensive asylum procedure, you must be facing removal proceedings in immigration court with the Executive Office for Immigration Review.

Individuals are generally placed into defensive asylum processing in one of two ways:

  • They are referred to an immigration judge by USCIS after they have been determined to be ineligible for asylum at the end of the affirmative asylum process, or
  • They are placed in removal proceedings because they:
    • Were apprehended in the United States or at a U.S. port of entry without proper legal documents or in violation of their immigration status; or
    • Were apprehended by U.S. Customs and Border Protection (CBP) trying to enter the United States without proper documentation, were placed in the expedited removal process, and were found to have a credible fear of persecution or torture by an asylum officer.

The judge will hear arguments from both of the following parties:

      • You (and your attorney, if represented)
      • The U.S. government is represented by an attorney from U.S. Immigration and Customs Enforcement.

The immigration judge then decides whether you are eligible for asylum. If the immigration judge finds you eligible, they will grant asylum. If the immigration judge finds you ineligible for asylum, they will determine whether you are eligible for any other forms of relief from removal. If the immigration judge finds you ineligible for other forms of relief, they will order you to be removed from the United States. Either party can appeal the immigration judge’s decision.

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  • You have been persecuted or have a well-founded fear of persecution if you return to your home country because of your race, religion, nationality, membership in a particular social group, or political opinion – visit www.visas.gov for more information.

 A “significant possibility” that you can establish in a hearing before an Immigration Judge that you would be subject to torture if returned to your country.

Individuals Seeking Asylum

If you say you fear return, CBP detains you and provides you information about the credible fear process. After you are detained, you will be given:

  • An orientation to the credible fear process
  • A list of free or low-cost legal service providers
  • At least 48 hours after your arrival at the detention site before taking part in the interview
  • The opportunity to waive the waiting period

You may not be granted asylum or withholding of removal  if:

  • You have persecuted others on account of race, religion, nationality, membership in a particular social group, or political opinion
  • You have been convicted of a particularly serious crime
  • There are serious reasons for believing you committed a serious nonpolitical crime outside the United States
  • You have engaged in terrorist activity, are likely to engage in terrorist activity, have incited terrorist activity, or are a member or representative of a terrorist organization
  • You were firmly resettled
  • There are reasonable grounds to believe that you are a danger to the security of the United States

Xavier Law Firm recommends that you hire an immigration attorney who will represent you effectively through the ASYLUM process. An immigration attorney will not only help you with information or guide you through the entire process but will make sure that you meet all the necessary requirements so that you can successfully apply.

The information provided on this website does not constitute and is not intended to constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only.
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How Can You Request Asylum In The United States?

Foreign citizens have different paths to regularize their immigration status in the United States. Political asylum is one of them and it is a highly demanded process that if approved, provides a path to permanent residence and later on, US citizenship.

Now, what requirements must a person meet to receive political asylum? Who qualifies? What are the benefits? The principle is that in order for a person to obtain political asylum, they must suffer persecution because of race, nationality, political position, religion or for being a member of a specific social group, for example, being part of the LGBT Community. Such persecution has to be proven for the process to be accepted.

Generally speaking, winning a case for political asylum is not a simple task, so it is necessary to seek legal advice to increase your chances of success. The most advisable thing is that if you do not have a real case for asylum, you should look for other options that can guarantee your legal stay in the United States.

How Can You Get Asylum In The United States? 

There are two paths to claim asylum in the U.S. The affirmative asylum process is for individuals who are not in removal proceedings and the defensive asylum process is for individuals who are in removal proceedings

To benefit from the AAP, the asylum seeker needs to be present in the United States. The request must be made within one year of his entering the country. This application is formalized before the United States Citizenship and Immigration Service (USCIS) with Form I-589

According to the USCIS website, if the asylum case is denied and the person does not have legal status in the United States, USCIS will transfer the case on to an immigration judge, who will be responsible for making the decision to open a deportation process.

Applicants may be in the United States during the process with USCIS. If the asylum seeker is found “ineligible”, the applicant may be allowed to stay in the country while the process is open before the immigration court. It is important to keep in mind that most asylum seekers are not authorized to work in the United States.

The second process is called the Defense Asylum Process, for which it is necessary for the person to be in removal proceedings before an immigration court.

These cases are taken by immigration judges in a confrontational style (typical in common law jurisdictions), so the two parts are heard: the applicant and his lawyer, and a representative of the United States government.

It will be the immigration judge who decides whether or not the asylum seeker is eligible. Depending on the decision, these are the possible scenarios: either he is eligible and obtains political asylum, or he is deemed ineligible. The judge then checks whether the applicant has any other basis that could allow him to avoid removal. In case the asylum seeker is ineligible, it will be the judge who will make the decision to deport him/her from the United States.

We all know that getting political asylum is not at all easy, since it is essential to have the right arguments to obtain it, as well as to know the case and its options very well. Remember that the approval or denial of asylum and the immigration stability of the applicant will depend on that. Hence, it is a rigorous process for which you must have adequate legal advice.

Keep in mind that a large number of people request asylum and, even after presenting all of the information required, there is no guarantee that their applications will be successfully approved

It is also important to note that political asylum is a rigorous process that needs to be treated as such, even though some may believe otherwise. Do not forget that meeting the requirements is the first step to apply for asylum.

As USCIS makes it clear on its website that asylum is a way of protecting for those who meet the definition of refugee and who are on US soil. It is a request that can be made without taking into account the current immigration status and the country of origin.

Another fact is that it is possible to include in the application the spouse and children who are in the United States while making the decision on the case. They should be single and under 21 is the requirement to include children.

Are you looking to apply for political asylum? Are you waiting for the final decision from an immigration court? Whatever your case, you should keep in mind that undergoing a political asylum process can be something very stressful, so it is recommended to act quickly until the process is finished.

Let us be clear about the Trump administration, it has a harsh immigration policy, which today affects millions of foreign citizens who go to the United States in search of better living conditions.

This policy has been aimed at avoiding the wave of migration in the country and more and more restrictions are being made. Regarding the requests for political asylum, last July the US government announced that those migrants who had stopovers in a third country, before they arrived to the United States, may not be eligible for asylum.

As soon as the measure was announced, organizations such as UNHCR said they considered it “excessively” limiting the right of citizens to request political asylum.

In UNHCR’s opinion, those who decide to leave their countries of origin, do so for persecution reasons and not for economic reasons. “Many of them flee the horrific violence of brutal gangs and need international protection,” the agency said.

For its part, Amnesty International stressed that with this measure the United States government only seeks to curb “the latest legal and safe ways” that have those who leave their countries to get support in US territory.

Because of this and other policies, the United Nations has set its eyes on Donald Trump for failing to honor international commitments on the immigration issue.

This measure is in addition to those that have been carried out in recent years to prevent the arrival of migrants. Restrictions and obstacles center the policy of the US government in the country with the largest number of immigrant populations.

Now, will this measure influence the approval of political asylums? Will the restrictions continue?

How Can You Benefit From Obtaining Asylum?

Asylum can help you to work in the United States is one of the main benefits of obtaining political asylum, even if the person does not yet have an EAD (Employment Authorization Document).

Another benefit is the possibility of getting a Social Security Card that is granted to people once they are accepted. This card would not have any restrictions.

There is the possibility to obtain family asylum which can be requested at any time during the process for the spouse or children who were part of the asylum application.

For those who have obtained political asylum, after one year of their stay in the United States, they may apply for Permanent Residence. For this, an I-485 form will be required by the applicant and their family members who also seek Permanent Residence.

As an asylum seeker, a foreign citizen can get help from organizations that are sponsored by the Office of Refugee Resettlement. Health care, financial aid, English learning and work preparation are part of the services provided.

Obtaining political asylum also requires consideration of special aspects when leaving the United States. Therefore, asylum seekers who wish to do so must first notify them through a “Refugee Travel Document”.

Asylees must also notify USCIS if there is a change of address. This can be done by calling 1-800-375-5283, or from the “Electronic Address Change” tool, or by submitting an AR-11 form, which is called “Foreign Address Change Card”

If the destination of the trip is the asylee’s country of origin, it is essential that he/she takes into account that he must do so with great caution because of who has been persecuting him/her for his race, political opinion, religion or for being part of a social group-specific will you want to return to your country. The United States Government could consider that there is fraud.

An asylum application and a work permit are two procedures that cannot be done at the same time. In any case, the asylee may formalize his work authorization 150 days after obtaining asylum even if nothing has been decided regarding the asylum application yet.

The opposite is true if asylum has already been approved, since in that case the person may be allowed to work immediately, so that the work permit is considered one of the great benefits of the political asylum process. It is important to clarify that it is not necessary to pay any fees for asylum applications or for an employment authorization.

Every day, the number of foreign citizens who decide to request political asylum increases, which is motivated by the social, political, and economic situation in their countries. This has led many to make an application even when they do not qualify for eligibility and, therefore, are denied asylum.

It will be a judge in charge of making that decision and the lawyer in charge of the case may appeal within 30 days, and, during this time, the applicant can stay in the United States.

Asylum may be denied due to inconsistencies in legal representation. Frequently, it turns out that foreign citizens are deceived by the idea that they do qualify for asylum when in reality they don’t. As a consequence, the asylum application is denied and if the person has no legal status, they must face a deportation process.

Some of the reasons why political asylum is denied:

Because they do not meet the criteria for asylum. Sometimes asylum seekers do not formalize the request upon arrival in the country or within the time parameters established by the government.

It should be clear that once the application is denied, only if the applicant has legal status, can he stay in the country. However, if your immigration status is outside the law, USCIS refers the case to an Immigration Court, which is the entity responsible for opening a deportation process.

When a person faces deportation, he/she should keep in mind that: 

  • You may be detained by the US Immigration and Customs Enforcement Service for a long time and without having the option to pay bail.
  • Although you will be entitled to a lawyer, however, he must pay for it.
  • If you do not attend a hearing before the Immigration Court, you might still be deported without being present. If the decision is deportation, the judge will proceed with or without the person being present.

However, not everything is so bleak. Even if the person is undocumented, he/she may use some resources to appeal that deportation process. These resources include waivers before the immigration court, cancellation of deportation for non-residents, cancellation of deportation for permanent residents, motions, bail lawsuits, adjustment of status, and other options.

Who can help you in such cases? Of course, an experienced immigration attorney who has already won many cases of this time before an immigration court.

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