Asylum Explained
Asylum is a a form of protection that allows an individual, who feels their life is in danger, to seek refuge in safer countries instead of being removed (deported) to a country where he or she fears persecution or harm.
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
Who is an Asylee?
A person, who sought and obtained protection from persecution from inside the United States or at the border. An asylee is an individual who meets the international definition of refugee – a person with well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group, who has been forced to flee his or her country because of persecution, war or violence. In the U.S., asylum seekers apply for protection from inside the country or at a port of entry.
In contrast, a refugee is a person who applies for protection from outside of the U.S.
Eligibility for Asylum
To determine if you are eligible for asylum status, USCIS will evaluate whether you meet the definition of a refugee according to section 101(a)(42) of the Immigration and Nationality Act (INA). In general, eligibility for asylum requires that:
- You are present in the United States (by lawful or unlawful entry)
- You are unable or unwilling to return to your home country due to past persecution or have a well-founded fear of persecution if you return
- The reason for persecution is related to one of five things: race, religion, nationality, membership in a particular social group, or political opinion
- You are not involved with an activity that would bar you from asylum
How Can an Individual Apply for Asylum in the U.S.?
Either affirmatively or defensively. Depending on whether the applicant is or isn’t in removal proceedings, he or she may apply for asylum either through the affirmative asylum process or the defensive asylum process. Under both processes, asylum seekers must indicate a “well-founded fear” of persecution in their home countries during a credible fear interview with immigration authorities. Otherwise, they are ordered for removal.
Affirmative Asylum Process
Affirmative asylum would be what’s considered a “regular” asylum case. The applicant must be present in the United States and may apply for asylum at any port of entry. It’s a proactive approach to the asylum process, as the applicant makes a claim before any enforcement or deportation efforts have started.
Generally, the applicant must submit Form I-589, Application for Asylum and for Withholding of Removal, within one year of arrival to the U.S. There is no fee to apply. He or she must provide a qualified interpreter for the asylum interview.
Defensive Asylum Process
If the asylum seeker is already in removal proceedings (deportation process) through an immigration court, it becomes a defensive asylum process. The applicant is asking for the government to reverse its decision to deport and allow him or her to remain in the United States via asylum. An immigration judge makes a decision independent of any previous decision by USCIS.
The immigration court provides a qualified interpreter for the asylum hearing and all other court proceedings.
Typically, an asylum case turns defensive if one of the following situations occurs:
- A person claims asylum at the border;
- The applicant applied for affirmative asylum first, and the application was not approved, after which the applicant was placed in removal proceedings;
- Immigration officials place the individual in removal proceedings for immigration violations (typically no documents or overstay);
- The individual tried to enter the U.S. without proper documents, and a U.S. CBP officer determines there are reasons to believe that the person’s life or safety is in danger. This is validated by going through what is called the Credible Fear process.
People in the defensive asylum process must go to removal (deportation) hearings in an immigration court. Immigration and Customs Enforcement (ICE) is responsible for arguing against the asylum seeker, and in favor of deportation. Individuals will have the opportunity to defend themselves, either on their own or through a lawyer.
What Is a “Well-Founded Fear”?
In order to demonstrate a well-founded fear of persecution, you will need to show both subjective and objective reasonable fear.
A subjective fear means that you, personally, really do fear returning to your country of origin. An objective fear means that you can demonstrate facts, based on objective sources of evidence or your and other witnesses’ persuasive, credible testimony, that any reasonable person would fear persecution in your position.
Employment Authorization
Asylum seekers may be eligible to obtain a work permit (employment authorization document) based on a pending asylum application. If USCIS grants asylum, the beneficiary is immediately authorized to work.
How Long Does the Asylum Process Take?
The length of the asylum process varies, but it typically takes between 6 months and several years. The length of asylum process may vary depending on whether the asylum seeker filed affirmatively or defensively and on the particular facts of his or her asylum claim.
After USCIS Grants Asylum
Once USCIS awards asylum to a person, he or she may live and work in the United States as long as they qualify as asylees. They also have access to healthcare assistance through the Office of Refugee Resettlement. USCIS will provide an approval letter and an I-94 arrival/departure record with the grant of asylum as evidence to obtain benefits. USCIS will grant asylum to the principal applicant’s spouse and children if included on the I-589 application.
A grant of asylum in the United States does not expire. However, USCIS may terminate asylum status if the beneficiary:
- No longer has a well-founded fear of persecution because of a fundamental change in circumstances
- Obtained protection from another country
- Obtained the original asylum grant through fraud
- Committed certain crimes or engaged in other activities that make him or her ineligible to retain asylum in the United States
Green Card Eligibility
If you were granted asylum status, you are eligible to apply for a green card (permanent residence) one year after receiving your grant of asylum. Your spouse and children are also eligible to apply for a green card if they were admitted to the United States as asylees or were included in your grant of asylum. If you are an asylee, you may apply for a green card one year after being granted asylum if you:
- Have been physically present in the United States for at least one year after being granted asylum;
- Continue to meet the definition of a asylee (or continue to be the spouse or child of such asylee);
- Have not abandoned your asylee status;
- Continue to be admissible to the United States (A waiver may be available to you if you are now inadmissible); and
- Are not firmly resettled in any foreign country.
This is an important benefit because it allows them to remain in the United States permanently.
Applying for Asylum can be quite complicated and stressful. Working with an experienced immigration attorney will help make it a smooth process, as well as minimize the risk of being denied. At Root Law Group, we offer free consultations with our experience immigration attorneys. Over the years, we helped 2500+ clients and are proud to have a high 95% success rate most case. Call us today at (323) 456-7600 to schedule your free consultation!
Source: USCIS | NOLO | National Immigration Forum | CitizenPath (1) | CitizenPath (2)
