Frequently Asked Questions About Asylum
If you fled your country seeking protection from physical harm, psychological or mental harm, or torture based on your race, political opinion, religion, nationality, or social group, you may be able to apply for asylum in the United States. People applying for asylum must navigate a difficult legal process. Given the complexity of the law and the current climate, I advise people to hire an attorney. At the very least, you should do a thorough consultation with us or another competent experienced attorney. Below are some frequently asked questions about the application process.
What Is Asylum? Asylum is a protection granted to foreign nationals already in the United States or at the border if you can show that you meet an international definition of a refugee. This refugee definition is someone who is unable or unwilling to return to his or her home country, and cannot obtain protection in that country, due to past persecution or a well-founded fear of being persecuted in the future on account of race, religion, nationality, membership in a particular social group, or political opinion.
What Is the Asylum Application Process?
There are two ways in which you may apply for asylum in the United States: (1) an affirmative application and (2) the defensive application process. If you arrive at a U.S. port of entry or are stopped while attempting to enter the United States without inspection, generally you must apply through the defensive asylum process. You are required to prove that you meet the international definition of a refugee. Applicants often provide substantial evidence throughout the affirmative and defensive processes demonstrating either past persecution or that you have a “well-founded fear” of future persecution in from your home country. Your own testimony is usually critical to your asylum determination. Asylum seekers with attorneys have a much higher rate of success than those who file their cases by themselves.
- What is Affirmative Asylum? If you are in the United States but not in removal proceedings may affirmatively apply for asylum through U.S. Citizenship and Immigration Services (USCIS), a division of the Department of Homeland Security (DHS). If the USCIS asylum officer does not grant the asylum application and the applicant does not have a lawful immigration status, he or she is referred to the immigration court for removal proceedings, where he or she may renew the request for asylum through the defensive process and appear before an immigration judge.
- What is Defensive Asylum? If you are here in the United States and in “removal proceedings” (also called “immigration court” or “deportation proceedings”), you may apply for asylum defensively by filing the application with an immigration judge at the Executive Office for Immigration Review (EOIR) in the Department of Justice. In other words, asylum is applied for “as a defense against removal from the U.S.” Unlike the criminal court system, EOIR does not provide appointed counsel for individuals in immigration court, even if you are not able to retain an attorney on your own.
Is There a Deadline for Asylum Applications?
Yes! An individual must apply for asylum within one year of arriving in the United States. There are exceptions to the “one year rule”, which is yet another reason why you should get an attorney for the process. For instance, being in legal status is an exception. Being extremely ill is another example. You are still responsible for applying soon after the conditions of your exception come to an end. So do not wait to set up a thorough consultation to determine when you will need to take action.
As an asylum seeker, you could face obstacles in meeting the one-year deadline. You may face trauma from your time in detention or journeying to the United States. Or you may not have been aware that a deadline exists. Unfortunately, not knowing the law does not excuse the one year deadline, so we advise you to immediately seek counsel when you become aware of the deadline. Even those who are aware of the deadline encounter barriers, such as lengthy backlogs, that can make it impossible to file an application in a timely manner. In many cases, missing the one-year deadline is the sole reason the government denies an asylum application. At a good thorough consultation, an attorney should be able to discuss the options available to address your one year issue. Applicants who are found to pose a danger to the United States or who are able to move to another country are also barred from asylum. If you missed the one year deadline, have criminal issues, or had any problems with immigration in the past, you should get an attorney immediately.
What Happens to You if You Arrive at a U.S. Border?
Noncitizens who are encountered by, or present themselves to, a U.S. official at a port of entry or near the border are subject to expedited removal, an accelerated process which authorizes DHS to perform rapid deportations of certain individuals. To ensure that the United States does not violate international and domestic laws by returning individuals to countries where your life or liberty may be at risk, the credible fear and reasonable fear screening processes are available to you in expedited removal processes.
Credible Fear: If you are placed in expedited removal proceedings and you fear you would be harmed or you have been harmed in the past, tell a Customs and Border Protection (CBP) official that you fear persecution, torture, or returning to your country or that you wish to apply for asylum should be referred for a credible fear screening interview conducted by an asylum officer. If the asylum officer determines that you have a credible fear of persecution or torture, it means that you have proven that you have a “significant possibility” of establishing eligibility for asylum or other protection under the Convention Against Torture. You would then be referred to immigration court to proceed with the defensive asylum application process.
If the asylum officer determines you do not have a credible fear, then you will be ordered removed. Before deportation however, you may appeal the negative credible fear decision by pursuing a truncated review process before an immigration judge. If the immigration judge overturns a negative credible fear finding, you are then placed in further removal proceedings through which you can seek protection from removal. If the immigration judge upholds the negative findings of the asylum officer, you will be removed from the United States unless you appeal to the Board of Immigration Appeals (“BIA”). The process of appealing to the BIA is a bit like asking for a supervisor to review the decision of someone on their staff. The Board can either uphold the decision (keep it in place), overturn the Judge’s decision (reverse or change the decision), or remand to the Immigration Judge for further decisions (send the case back to the Judge to decide issues that still need to be addressed).
Reasonable Fear: Individuals who re-enter the United States unlawfully after a prior deportation order and noncitizens convicted of certain crimes are subject to a different expedited removal process called reinstatement of removal. To protect you from summary removal before your asylum claim is heard, those in reinstatement of removal proceedings who express a fear of returning to your country are afforded a “reasonable fear” interview with an asylum officer. To demonstrate a reasonable fear, you must show that there is a “reasonable possibility” that he or she will be tortured in the country of removal or persecuted on the basis of race, religion, nationality, political opinion, or membership in a particular social group. While both credible and reasonable fear determinations evaluate the likelihood of an individual’s persecution or torture if deported, the reasonable fear standard is higher.
If the asylum officer finds you have a reasonable fear of persecution or torture, he or she will be referred to immigration court. You have the opportunity to prove to an immigration judge that he or she is eligible for “withholding of removal” or “deferral of removal”-protection from future persecution or torture. While withholding of removal is similar to asylum, some of the requirements are more difficult to meet and the relief it provides is narrower. Significantly, and unlike asylum, it does not provide a pathway to lawful permanent residence.
If the asylum officer determines you do not have a reasonable fear of future persecution or torture, youl may appeal the negative decision to an immigration judge. If the judge upholds the asylum officer’s negative determination, you are turned over to immigration enforcement officers for removal. However, if the immigration judge overturns the asylum officer’s negative finding, you would be placed in removal proceedings where you can pursue protection from removal.
How Long Does the process take? On average, these cases have been pending for a couple of years. These long backlogs and delays could leave you in limbo, cause prolonged separation of refugee families, leave family members abroad in dangerous situations, and make it more difficult to retain pro bono counsel for the duration of your case. If you have a genuine fear of returning to your country, asylum remains an excellent option. Schedule a consultation as soon as possible to discuss these issues with your attorney.
What Happens to You While Your Application Is Processed?
As an asylum seeker, you may live in the United States while your application is processed. While U.S. law provides arriving you the right to be in the United States while your claim for protection is pending, the government has argued that it has the right to detain you.These practices are being challenged in the courts. If you have been detained, one of your friends or relatives should seek an attorney on your behalf.
Detention increases the challenges you face and can negatively impact your application. Children and families who are detained suffer mental and physical health problems, including depression, post-traumatic stress disorder, and frequent infections. Studies have found that detained individuals in removal proceedings are nearly five times less likely to secure legal counsel than those not in detention. This disparity can significantly affect an individual’s case, as those with representation are more likely to apply for protection in the first place and successfully obtain the relief sought.
Can I work while my application is Pending?
After your case has been pending for 150 days, you may apply for work authorization. The work authorization is good for several years.
What Are the Benefits of Asylum?
If you are granted asylum, you become an asylee. Having the status of “asylee” means that you are protected from being returned to your home country, you are authorized to work in the United States, you may apply for a Social Security card, you may request permission to travel overseas (although obviously not back to the country from which you fled), and you can petition to bring family members to the United States. After one year, you may apply for lawful permanent resident status (i.e., a green card). If you become a permanent resident, you must wait four years to apply for citizenship (unless you fall into another category). Asylees may also be eligible for certain benefits, such as Medicaid or Refugee Medical Assistance, However, consult with an attorney before applying for any benefits as the benefits may harm your chances of getting your lawful permanent residence.
Do I need a lawyer?
People with lawyers have a higher approval rate than those that do not. In this climate, you cannot be too careful. The law is complicated and nuanced, so you would be wise to seek legal help as soon as humanly possible.
Social group may include both traits that are innate (like race and nationality) or ones that you should not have to give up (such as religion and political opinion). For instance, your clan, tribe, cultural group, identity as homosexual, bisexual, or transgendered person, fear of genital mutilation, or fear of some other specific group to which you belong. Successfully defined social groups are clearly defined and easily recognizable by people in your country.