Many people come to the U.S every year seeking protection as victims or targets of persecution. The trigger factors for persecution may include political opinion, affiliation with a social group, nationality, religion, and race. Orange County Immigration Attorney, a law firm based in Orange County, helps these individuals understand the process of seeking asylum in the U.S. This article comprehensively covers the procedures and regulations involved in seeking this type of protection.
What it Means to Seek Asylum
Individuals who fled their home countries for their personal safety can seek special legal protections such as refugee status and asylum. The immigration authorities must establish that you have a fear of return to any part of your home country. If you have the ability to relocate and live in the said country safely, you will not obtain asylum.
Asylum and refugee status both apply to individuals who are in fear of persecution or are victims of persecution. However, asylum suits individuals who already made it to the United States border; while refugee status suits those who are outside of the country. Upon receiving any of these statuses, the immigration authorities will allow you to stay in the U.S indefinitely.
Persecution is a broad term for unjust acts such as harassing, oppressing, injuring or punishing. The term is also associated with activities that lead to people suffering from psychological or physical harm. Under the U.S immigration law, there are no set types of persecution identified to make someone eligible for refugee status or asylum. However, immigration officials consider acts such as inappropriate imprisonment, torture, violence, denial, or human rights/freedoms or threats as types of persecution.
Laws Regarding Asylum in the U.S
The Immigration and Nationality Act (INA) contains the legal provisions on the U.S Asylum Program. Laws regarding asylum are enshrined in INA 208 while rules on the procedures and eligibility requirements are enshrined in CFR (Code of Federal Regulations) 208. You can retrieve the administrative decisions reached by the Board of Immigration Appeals from the Department of Justice website.
Applying for Asylum in the U.S with USCIS
You will go through an affirmative asylum process when applying for asylum in the U.S with USCIS. The process begins with you arriving in the country and proceeds with you making the application. Other procedures involved in the process are as follows:
- Fingerprinting and security/background checks
- Receiving an interview notice
- Determining your eligibility and a supervisory asylum officer reviewing the decision
- Receiving the decision
The immigration authorities may allow you to remain in the U.S if you qualify for asylum. Once you meet the eligibility requirements, they will expect you to file Form I-589 within your first year of arriving in the country. You will not pay anything when filing an Application for Asylum and Withholding of Removal form. USCIS may allow you to include details about your children or spouse currently living in the U.S in the application.
Children included in an application for asylum must be below the age of 21 and unmarried for the USCIS to consider them. You can track the progress of your case on the USCIS website. When accessing your case status online, you will need a receipt number mailed to you by the USCIS after filing the application.
Can You Apply for Asylum and Employment Authorization at the Same Time?
USCIS does not allow immigrants to apply for asylum and employment authorization (permission to work) at the same time. However, you may proceed with the permission to work application if no decision regarding your asylum application has been made. You can also apply for employment authorization in 150 days after filing a complete asylum form. When granted asylum, you can begin work immediately without the need for obtaining employment authorization documents.
Does USCIS Allow You to Bring Your Family to the U.S as an Asylee?
You can bring your family members to the U.S after filing Form I-730 (the Refugee/Asylee Relative Petition). USCIS only allows you to file this form within two years of becoming an asylee without paying any fee. The two-year deadline may be extended if you have humanitarian reasons for delaying this petition. If your children and spouse are already in the country, you must include them on your Form I-589 application.
Besides including the details of your family members in the application, you may have to bring your family to the asylum interview. If the immigration authorities grant you asylum status, your family members will be granted the same. However, if the authorities refer you to the IC (immigration court) for removal proceedings, your undocumented family members will also experience the same.
Can You Leave the Country Following Your Asylum Application?
If you applied for asylum and have not yet gotten a decision from the immigration authorities, you should not leave without the advance parole. You can file the advance parole using Form I-131 (Application for Travel Document) to allow you to return to the country without a visa. However, the U.S CBP (Customs and Border Protection) officers will inspect you before reentering the country. If you leave the U.S without the advance parole, you will have automatically abandoned your asylum application.
Will You Need a Green Card After Becoming an Asylee?
You may obtain a green card (permanent residence in the U.S) one year after obtaining asylum. Consider filing Form I-485 (Application to Register Permanent Residence or Adjust Status) for the green card. USCIS also mandates you to submit a separate Form I-485 for yourself and for each relative who derived asylum from your case.
Can You Apply for Asylum for the Second Time?
If you previously sought asylum but did not succeed, you can make a second asylum application from a local asylum office in your place of residence. Consider including a letter (which states that you recently applied for asylum but got denied) with the application. You may also state in the letter that you are currently seeking asylum as an independent individual. USCIS will want you to reference the application in which you were previously listed as a dependent.
Making a Defensive Asylum Application with EQIR
The Executive Office for Immigration Review (EQIR) can allow you to request asylum status as a defense strategy against deportation or removal. You must be facing removal in a U.S immigration court for you to qualify for this special application. Furthermore, you may be placed into the defensive asylum process in one of the following ways:
- Being forwarded to an IJ (Immigration Judge) by USCIS following your ineligibility for asylum after seeking asylum with USCIS
- Facing removal proceedings after being caught with the Customs and Border Protection officers for trying to illegally enter the country or being caught in the US without proper legal documents or in violation of your immigration status
An Immigration Judge will hear your defensive asylum case in an adversarial proceeding. The IJ will invite arguments from you (and your immigration attorney) and the United States government (represented by a lawyer). Upon hearing these arguments, the IJ will decide whether you qualify for asylum. The IJ will order for your asylum grant found eligible. If you do not qualify for asylum status, the IJ will evaluate your eligibility for other relief forms or order your removal from the U.S.
How the Asylum Officer Determines Your Eligibility for Asylum
Asylum officers usually evaluate whether applicants meet the actual definition of a refugee under section 101(a)(42)(A) of the INA (the Immigration and Nationality Act). This act defines a refugee as an individual unwilling or unable to return to his or her country of last known habitual residence. Under this law, one can be considered a refugee if he or she is in fear of persecution in his or her home country based on nationality, race, political opinion, religion, or membership in a social group.
The information included in your application and submitted during an asylum interview will help an asylum officer evaluate whether you qualify as a refugee. INA 208(b)(2) highlights various reasons that make an applicant be barred from seeking asylum. These reasons include:
- Posing a danger to national security
- Committing a severe nonpolitical crime outside of the U.S
- Firmly staying in another country before arriving in the U.S
- Having a conviction for a serious crime including aggravated felonies
- Ordering, inciting, assisting or participating in someone else’s persecution based on political opinion, affiliation with a social group, race, nationality or religion
Is Physical Presence in the U.S a Requirement in an Asylum Application?
Making an asylum application is only possible if you are already physically present in the U.S or you are arriving in the country. If you are arriving in the U.S, you may seek asylum at the port-of-entry, which may include a border crossing, seaport, or airport. Individuals who are already in the country can file Form I-589 from an appropriate USCIS service center. Asylum applications are open to individuals who are in the U.S illegally or legally.
Can a Previous Asylum Denial Make You Ineligible?
If the Board of Immigration Appeals or Immigration Judge recently denied your asylum application, you cannot make a second one. The immigration authorities may give your case an exception if you demonstrate the changed circumstances materially affecting your asylum eligibility. Consider discussing your options with an immigration attorney to avoid facing removal proceedings after being denied asylum.
Does a Previous Crime Conviction Make You Ineligible?
Though you can make an asylum application even if you have a criminal conviction, USCIS may bar you from obtaining asylum depending on the committed crime. You are required to disclose any criminal history on Form I-589 and during the asylum interview. USCIS may refer your asylum claim to the Immigration Court if you do not disclose this information. You may end up paying fines or facing prison time for committing perjury.
Are Minors Eligible for Asylum?
USCIS allows minors to seek asylum in accordance with its Guidelines for Children's Asylum Claims. These guidelines help asylum officers in addressing the procedural and substantive aspects of the claim of a minor child seeking asylum. An asylum officer will be tasked to conduct a child-sensitive interview on the minor and ensure that the minor files the asylum application as required.
An Asylum Interview
Asylum interviews enable asylum officers to determine whether the applicants are genuine about their applications. Since USCIS does not offer interpreters in this type of interview, you must bring yours if you are not a fluent English speaker. USCIS does not allow your immigration lawyer, an employee or representative of your country or witnesses testifying on your favor to act as your interpreter.
The asylum officer will interview you through your interpreter. Before attending the interview, USCIS will schedule you for one with one asylum officer at any of its offices. USCIS will also send you an interview notice informing you about the date, time, and location of the interview.
Preparing for the Asylum Interview
Consider carrying forms of identification, including your passports, identification or travel documents and Form I-94 (issued when you arrived in the country). An asylum officer will expect you to carry original copies of your birth certificate or marriage certificate together with a copy of a completed Form 1-589.
You can reschedule the interview by visiting the asylum office and completing an In-Person Reschedule Request. Alternatively, mailing, emailing, or faxing a letter to the office can help you reschedule the interview. Asylum offices do not accept requests made by telephone. You need to prove that your rescheduling request is due to exceptional circumstances or a good cause for it the asylum office to accept it.
Finding out the Status of Your Asylum Application
The three ways of finding out the status of your pending asylum application include visiting an asylum office, sending an inquiry, and checking online. Checking your status online is much easier than pursuing these other two options. You can track the progress of your application from the USCIS website using the receipt number you got after making the application.
If you choose to send a written inquiry, consider addressing it to the specific asylum office with jurisdiction over your application. Include details such as your A-Number (an 8 to 9-digit number followed by the letter “A”), date of birth, and current legal name. The asylum office may also require you to include the interview date in your letter if applicable.
Visiting an asylum office handling your case can also help you track the progress of your case. USCIS has eight asylum offices spread across California, New York, New Jersey, Florida, Illinois, Texas, and Virginia. A third party entity cannot access your asylum information without your written consent pursuant to CFR 208.9. Signing a copy of Form G-28 (Entry of Appearance as Attorney or Representative) will allow you to have USCIS release information about your case to your lawyer.
Does the Process Take Long?
INA section 208(d)(5) states that the initial interview for asylum applications made on or after 1st April 1997 should occur 45 days after applicants file them. You should expect a decision on your asylum application to be made 180 days after you filed. Any delays in the process may be as a result of exceptional circumstances. The Asylum Division of USCIS began scheduling asylum interviews on 29th January 2018 in the following priority order:
- First priority (if you scheduled for an interview that had to be rescheduled at the USCIS’ needs or your request)
- Second priority (if it has been 21 days or less since you filed the application)
- Third priority (for other pending asylum applications scheduled for interviews)
You can make an urgent request for USCIS to schedule you for an interview regardless of these three priority orders. Consider submitting this request to your local asylum office in writing. Contact information for the asylum offices is available on USCIS’ service and office locator website You can also schedule an asylum interview at USCIS’ field offices if you reside far from the eight asylum offices or an asylum sub-office.
Types of Asylum Decisions
You should expect to receive one of the several types of asylum decisions following your asylum application. They include the grant of asylum, referral to an immigration court, recommended approval, a notice of intent to deny, and final denial. A Supervisory asylum officer usually reviews the decision made by an asylum officer on your case to determine whether it is consistent with the immigration laws. Explained below are the various types of asylum decisions to expect as an applicant.
Grant of Asylum
If USCIS determines that you qualify for asylum, you will get a letter and a completed Arrival-Departure Record form (I-94) granting you asylum in the U.S. The grant of asylum decision may also apply to your minor children and spouse provided that you included them in your application. Your family will also benefit from this decision if they were present in the U.S and you confirmed your qualifying relationship with them.
With a grant of asylum, you can apply for immigration benefits, a Green Card, a Social Security Card, and an Employment Authorization Document. Though the asylum grant does not expire, USIS can cancel your asylum status if you sought protection from another country or you sought asylum through fraud. You may also lose the status if you no longer have a fear of persecution or you committed various crimes.
You will be issued the recommended approval decision when you qualify for asylum, but USCIS has not received the results of your security checks. The decision may affect your children and spouse if they are present in the country and were included in the application. USCIS allows you to file Form I-765 seeking employment authorization with a recommended approval. The decision may be changed to a grant of asylum once USCIS receives the required security checks and clears you.
Referral to a U.S Immigration Court
If USCIS cannot approve your application and you are illegally present in the U.S, your case will be forwarded (referred) to the Immigration Court. The referral will also apply to your unmarried children and spouse who were included on your application and are in the country illegally. USCIS will also send you a Notice to Appear to the court and ask you not to re-file the application. Since a referral does not translate to a denial of an asylum application, the IC will review your case independently.
Notice of Intent to Deny (NOID)
USCIS will issue you a NOID if you have valid legal status in the country, but you do not qualify for asylum. A NOID usually states the reasons making you ineligible and gives you 16 days to explain or provide evidence indicating why you should be granted asylum. An asylum officer will thoroughly review your response if you send it early and decide whether to deny or approve your claim. You will receive a grant of asylum for an accepted claim and a final denial for a denied claim.
Failing to respond to a NOID 16 days after receiving the notice may result in USCIS sending you a final denial letter. You will also receive this letter if the response you submitted fails to overcome USCIS’ reasons for denying you asylum. The final denial will include any dependents you included in the asylum application. Though an asylum officer’s decision cannot be appealed, you can reapply for asylum after showing the changed circumstances affecting your eligibility for asylum.
Find an Immigration Lawyer Near Me
As an individual who fears or is a victim of persecution, you may find both the affirmative and defensive processes of seeking asylum frustrating. Orange County Immigration Attorney is an Orange County-based law firm helping individuals like you seek asylum status. Our goal is to help you receive a favorable asylum decision. Talk to us at 714-909-0426 today!