A person who applies for asylum protection must be physically present or “arriving” in the United States. If outside the United States, a person can seek entry into the United States as a “refugee” through a statutory overseas admissions process.
What Is Asylum?
To establish eligibility for asylum under U.S. law, an applicant bears the burden of proving himself or herself a “refugee” as defined in § 101(a)(42) of the Immigration and Nationality Act (INA). Under U.S. law, a refugee is a person unable or unwilling to return to his or her country of origin or last habitual residence because of either “persecution or a well-founded fear of persecution” on the basis of race, religion, nationality, membership in a particular social group, or political opinion. Persecution and well-founded fear of future persecution are separate and distinct bases of asylum eligibility. In some instances, persons who suffered past persecution, but face no reasonable fear of future persecution, may be granted asylum as a matter of discretion on “humanitarian” grounds.
Individuals must apply for asylum within one year of arriving in the United States. However, if the applicant can show “extraordinary” or “changed” circumstances to justify filing after the one-year period has lapsed, the restriction can be waived.
Applicants for asylum, noncitizens granted asylum, and noncitizens granted withholding of removal under INA § 241(b)(3) or under the Torture Convention may be able to obtain work authorization after 180 days. An asylum applicant’s spouse and minor children may receive status along with the applicant.
Grants of asylum are for an indefinite period of time. Persons who are granted asylum may apply for permanent resident status after a year of being continuously present in the United States.
There are two basic fora for most asylum claims. Generally, those persons who have not been intercepted at a border or apprehended or arrested by DHS may apply “affirmatively”; a DHS asylum officer will interview the applicant and resolve the claim. In most cases, the asylum officer renders a decision either to grant asylum or to refer the applicant to a hearing before an immigration judge. If the applicant was in a lawful immigration status at the time of application, the application will either be granted or denied; in the case of denial, the applicant returns to his or her former status.
If the USCIS Asylum Office does not grant a claim, or if DHS arrests, apprehends, or otherwise initiates proceedings against the person, she may apply for asylum “defensively” during a formal adversarial removal proceeding before an immigration judge. Applications for withholding of removal and protection under the Convention Against Torture are also adjudicated in immigration court proceedings.
If you are in removal proceedings, your attorney can file Form I-589, Application for Asylum and for Withholding of Removal, with the immigration court if you’ve suffered past persecution in your home country and/or have a well-founded fear of future persecuted based on the protected grounds. Court procedures are complex, and many years can pass until you get a final hearing. Removal proceedings are also an adversarial setting where the government counsel will argue for your deportation. It is therefore essential to have a qualified advocate prepare, present and argue your case for you. It is crucial to meet the filing deadlines, so seeking legal assistance early is highly recommended.
Important resources for seeking asylum during removal proceedings:
- USCIS Asylum Page: https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum
- Executive Office for Immigration Review (EOIR): https://www.justice.gov/eoir
- Immigration Advocates Network: https://www.immigrationadvocates.org/
- American Immigration Council: https://www.americanimmigrationcouncil.org/
Remember, seeking legal counsel from an experienced immigration attorney is crucial throughout this process. We can guide you through the specific steps, help prepare your case, and represent you in court.