Immigration Guide: Asylum In The USA

Obtaining asylum in the USA is a form of protection granted to people who are persecuted in their countries of origin for political, religious, race, nationality or membership of a particular social group. People who are persecuted also have other protection options related to asylum such as Temporary Protected Status (TPS) or refugee status, among others. This article contain everything you need to know about Asylum In The USA.

Immigration Guide: Asylum In The USA

The Right Of Asylum In The USA In 2022

The term asylum refers to the protection of people who request it for various reasons and situations. Asylum occurs when the host country offers a security and protection that the country of origin cannot guarantee.

The situations that cause asylum applications are: humanitarian crises, political violence, natural catastrophes and armed conflicts, among others.

Theoretically, in the light of the Declaration of Human Rights and the Geneva Convention, a person fleeing their home country is subject to protection in a host country. That is, the right to asylum must be recognized in any country, but this is not always the case.

Because each sovereign state has the power to grant asylum to those who qualify according to their legal norms.

The right of asylum is contemplated in US law. This protection is granted when the applicant proves that he is persecuted in his country of origin for reasons of:

  • Race.
  • Religion.
  • Nationality.
  • Political opinion.
  • Belonging to a certain social group.

On the other hand, the applicant must demonstrate that the government of their country of origin is involved in the persecution or is not able to control the criminal conduct of the private actors that execute the persecution.

Types Of Asylum In The USA

There are two ways to apply for asylum rights in the United States. One is when the person requesting it is already physically in the national territory. The other is to apply for asylum when entering the country with a nonimmigrant visa at a port of entry.

There are also two types of asylum in the USA: affirmative asylum and defensive asylum. Affirmative Asylum is for people without an expulsion process. While Defensive Asylum is intended for people who are in the process of expulsion.

Now we explain a little more the meaning of both types of asylum.

Affirmative Asylum

The request made by people to the United States government for protection for themselves and their families is called affirmative asylum. It is requested by migrants who are not in deportation proceedings.

Affirmative asylum is requested through the United States Citizenship and Immigration Service (USCIS). This is an agency of the Department of Homeland Security (DHS).

If for some reason the USCIS officer does not approve the asylum application, the applicant is referred to a removal procedure. However, you will still have the option to reapply for asylum through a defense process in which you must make presence in front of an immigration judge.

Defensive Asylum

It can be requested by a person who is in the process of expulsion to avoid deportation. This occurs when USCIS rejects an asylum (affirmative) petition filed by a person without legal status.

Likewise, it is requested when an undocumented foreigner is arrested or caught trying to enter the border illegally. This request must be submitted to an immigration judge at the Executive Office of Immigration Review (EOIR) of the Department of Justice.

It is called defensive asylum because it applies as a “defense against expulsion from the United States.” For both processes (affirmative and defensive), the immigrant has the right to be represented by a lawyer.

Unlike what happens in criminal proceedings, the government does not provide the lawyer or public defender to represent the detainee before an immigration court. Even in cases where the immigrant cannot hire a private lawyer due to lack of money.

The immigration judge can grant or deny the asylum request. If this occurs, the court’s decision is appealable. But if the appeal is also rejected, the immigrant will not be able to return to the United States.

Asylum In The USA For Immediate Family Members

The spouse and unmarried children under 21 of the asylum seeker can also benefit from this immigration benefit. Regardless of whether or not they are present in the USA.

In any case, to apply for asylum, you must fill out Form I-730, Petition for Refugee Family Member / Asylum, for each qualifying relative. The applicant has two years to apply after the asylum approval date.

In the case of requested spouses, the rule states that they must be married before submitting the application. Federal laws accept same-sex marriages as well.

Types Of Asylum Decisions

When a person applies for asylum, the Citizenship and Immigration Service (USCIS) can make the following decisions:

  • Grant asylum.
  • Refer the case to an Immigration Court.
  • Approve asylum by recommendation.
  • Notify the attempted denial.
  • Deny the request.

The Process For Obtaining Asylum In The USA

To apply for asylum while being within the territory of the United States and without an open deportation process, the person must perform the following process:

  1. File an Asylum application with USCIS using Form I-589.
  2. Fill in the eligibility requirements:
  • Having a well-founded cause in any of the five reasons to be prosecuted in the country of origin.
  • Submit the asylum application within one year after entering the United States. However, there are exceptions to this rule arising from:
  1. Changes in circumstances that affect the applicant’s eligibility.
  2. Extraordinary circumstances that have led to delaying the presentation.
  3. There is a possibility of being eligible for an exception due to extenuating circumstances for not having done so.
  1. When the USCIS receives the request, it sends the asylum seeker a notice of receipt. It is always recommended to write the US address clearly and notify the agency of any change of address on time.
  2. Take fingerprints (biometric) at Homeland Security Department of Homeland Security, after receiving notification. The fingerprints are for the FBI to do the historical record check.
  3. If the applicant passes the criminal record, he is notified to attend an asylum interview with a USCIS officer.
  4. During the interview the officer will ask the applicant questions to verify his credible fear of persecution in case of having to return his country of origin. If the test is approved, the applicant can receive asylum in the USA, otherwise the case will be referred to an immigration court.

Requirements To Process Asylum In The USA

These are some of the documents that may be required by USCIS to process and obtain asylum:

  • Cover motivational letter of asylum application (where the main point of the application is presented).
  • Affidavits that support the request.
  • Proof of fingerprinting.
  • Passport-type photographs of the applicant.
  • Birth Certificate translated into English properly by an interpreter.
  • Copy of the applicant’s passport.
  • Copy of the identity document of the applicant.
  • Form I-94 delivered to the applicant upon entering the U.S.
  • Visa stamping.
  • Parole Document.
  • Marriage certificate of the applicant if married, duly translated into English.
  • Birth certificates of children under 21 years of age, translated into English.

Documents To Prove Persecution In Asylum Cases

Below are some of the documents that could serve as evidence to support and demonstrate persecution in an asylum case.

  • Medical evaluation and tests that show that the applicant or his family were victims of torture, physical injury or psychological damage in their country of origin.
  • Evidence of arrests or convictions against the applicant in their country of origin.
  • Medical Evaluation by doctors in the United States that show scars and other signs of physical abuse.
  • Photographs of the applicant or his family in his country of origin proving the persecution and his affiliation with a party, political movement or religious group.
  • Witness statements that account for the persecution or political links of the applicant.
  • News, articles or newspaper reviews that demonstrate or connect the applicant with their situation in the country of origin and prove the reasons for the persecution.
  • Press information describing the situation experienced in the country of the asylum seeker.
  • Books or articles written by the applicant.
  • Membership document evidencing the applicant’s affiliation to a specific social or religious group.
  • Letters or affidavits issued by leaders or prominent members of the group.
  • Official documentation demonstrating the activity performed by the applicant.
  • Acknowledgments received by the applicant in his political party or religious social group.
  • Any other serious and credible evidence that can provide sufficient basis to apply for asylum.

The asylum seeker must remember that he can apply for asylum at any port of entry into the U.S. If you are already in the United States, you can also apply, regardless of immigration status or how you entered the country.

Who Is Eligible For Asylum In The United States?

Foreigners who can prove they were or will be prosecuted in the future and are already in the United States. To apply for asylum they must have arrived less than a year ago (although there are exceptions).

Our immigration lawyers in Los Angeles specialized in asylum can clarify all your doubts about this point.

Similarly, foreigners who are currently in their country of origin and arrive at a U.S. port of entry (airport, port or border crossing) are eligible.

All other members of the immediate family of the asylee (spouse and unmarried children under 21 years of age) are eligible for asylum in the USA and employment authorization. The indispensable requirement is that they have been previously named in the asylum application.

This includes family members who were not present in the United States, at the time of the asylum application.

If you want to get more information on family issues related to immigration, we recommend you review our article dedicated to “Family based immigration”.

How Long Does Asylum Last?

Foreigners who receive the asylum benefit can keep it indefinitely. The only thing that must be renewed every year is the authorization of employment of the asylee.

What Is The ‘Credible Fear Interview’?

It is an interview by the USCIS officer to the asylum seeker to verify that there is actually a solid foundation based on the fear of returning to their home country. Although on the US border with Mexico when a person applies for asylum, a preliminary interview takes place.

This interview is conducted by an officer of the Office of Customs and Border Control (CBP) and he determines whether the applicant moves to the next level. That is, to the formal ‘credible fear’ interview conducted by a USCIS officer.

The immigration officer interrogates the immigrant about the reasons for requesting asylum. You will be asked to answer questions related to the way you have been persecuted, tortured and more.

If the asylum officer considers the person to be telling the truth and his credible fear to have a solid base, then he will approve the asylum. Otherwise, it will refer the applicant to an immigration court.

At the hearing with the immigration judge, the immigrant may request asylum for the United States. So the credible fear interview is perhaps the key or most important element in obtaining the right to asylum.

Why Should I Contact A Trustable Asylum Lawyer?

The immigration lawyer, expert in asylum cases, helps you present your story, argue it and document it. Due to his experience in these cases, he has helped in dozens of successful asylum applications in the United States.

These are some of the reasons why you should seek legal help for your asylum case and why our firm offers you more advantages:

  1. We will tell you honestly if you have a case or not and what are the chances of success. That is why it is so important to know who is hired so you are not wasting time or money.
  2. We help gather substantial and credible evidence.
  3. We assist the immigrant in each stage of the asylum process (including the interview).
  4. We organize the information that will be presented to the asylum officer or the immigration judge who is reviewing the case.
  5. If for some reason, before or after the process is initiated, it is determined that the asylum application does not continue, our immigration attorneys will tell you what other options are available to you. The important thing is to always have other options at hand to stay legally in the country.
  6. You can request a direct consultation with our lawyers without committing to anything.
  7. With adequate legal assistance, the chances of obtaining asylum in the United States increase considerably.

Frequently Asked Questions About Asylum

How To Obtain Work Permit?

After 150 days have passed since the asylum seeker submitted his complete case to USCIS, he has the right to request a work permit. The Employment Authorization Document (EAD) can be processed if this period has elapsed, there is still no response to the asylum application.

When the asylum application is approved, the same agency handles the work permit directly. Similarly, if asylum is granted by the immigration court or the appeals court, the EAD can also be requested from the USCIS.

If you have questions about this procedure, consult with our Lluis Law immigration lawyers.

Are Asylum And Refuge The Same?

No. Many times we refer to the terms asylum and refuge as synonyms and it is a mistake. They do not mean the same in terms of international humanitarian law.

The refuge is the place or territory that offers shelter and protection to a person who is going through a time of need or danger. While asylum is the protection granted to the person requesting it.

It is considered that asylees and refugees make up approximately one tenth of total annual immigration to the US, becoming large populations in specific territories.

This phenomenon intensified after World War II, when more refugees entered the country in search of a home in the United States.

The right to shelter is regulated in:

  • The Geneva Convention on the Status of Refugees (1951).
  • The Protocol on the Status of Refugees of the AGONU (1967)

What Are The Rights Of The Refugee?

The refugee has the right to:

  • Receive support and attention from public institutions in the country that grants it.
  • Receive adequate health services.
  • Exercise the right to work (not required to do so).
  • Obtain a valid identity document that accredits you as a resident and allows you to travel and move freely.

When Is A Person Considered A Refugee?

The laws of the United States consider that a person is a Refugee when:

  • It is located outside the United States.
  • The state constitutes a special humanitarian concern towards that person or social group.
  • It is shown that the person has been persecuted or fears persecution for reasons of race, nationality, religion, political opinion, or for belonging to a certain social group.
  • The person has not been permanently relocated to another country.
  • The applicant is considered eligible to be admitted to the United States.

What Are The Benefits Of Requesting Asylum In The USA?

The main advantage of formalizing an asylum application is that you are immediately in a situation of international protection. This implies that during the procedure, you temporarily resolve your legal residence and immigration status in the host country.

When you start the asylum procedure and while the government makes a decision on your case, you have full rights, except political rights. Therefore, you can:

  • Work legally;
  • Go to public health services;
  • Open a bank account;
  • Get a driving license;
  • Study in an American educational institution.
  • Another benefit is that you can opt for a family reunification procedure. That is, ask your immediate family (spouse or children that are included in the initial application submitted).
  • At the end of the year you can apply for permanent residence or Green Card; but you must also comply with the payment of taxes.

During the asylum application process, the person covered by the principle of non-refoulement. In other words, it cannot be expelled from the US territory, unless it is involved in a serious crime.

What Are The Disadvantages Of Seeking Asylum In The USA?

The biggest disadvantage of applying for asylum here obviously is that you cannot travel to your home country and sometimes to other countries or within the same country. The government may exercise control or supervision activities over you for reasons of state security.

Likewise, it may not have access to certain jobs and social benefits, which are reserved only for citizens.

One of the biggest risks or disadvantages of requesting asylum in the US is that the government determines that you do not qualify as political asylum. Consequently he can decide his deportation and prohibit him from entering the country again.

Therefore, when an important decision like this is made, the asylum seeker must have adequate expert legal advice. This prevents unfortunate mistakes and wasted time and money.

At present, the rules for asylum seekers have become very hard due to the zero tolerance policy for immigration.

Changes In The Current Asylum Laws In The USA

Immigration authorities are increasingly demanding with the evidence presented for asylum cases. Immigration agencies have observed that in many cases the alleged evidence is false.

Therefore, they are now investigating more when requesting information from their respective embassies, governments accused of persecution and other public and private organizations.

Thus the government verifies if the evidence presented by asylum seekers (photographs, videos, testimonials, official documents) is real. To obtain the right of asylum, the applicant not only needs to present real evidence but also be well advised to build a solid case.

In addition, the new federal government policy is rejecting asylum applications for migrants at its border. To accept the asylum application, migrants arriving at the US-Mexico border are now being forced to demonstrate that:

  1. They requested asylum in a third country through which they passed, before reaching the border and their application was rejected or that;
  2. Although they did not apply for asylum in a “safe third country,” they have been victims of some form of severe human trafficking.

For geographical reasons, Mexicans and Canadians have been excluded from this rule.

Currently, even immigrants with legal status are not guaranteed enough to remain in the country. This is one reason why foreigners must protect themselves and prevent their rights from being violated.

What Are The Other Forms Of Relief Related To Asylum?

In addition to asylum, there are other forms of relief that can be used when the immigrant does not qualify. Also in cases where it is considered that another route may be safer to obtain a migratory benefit.

Among these forms of relief are:

  • Withholding of removal.
  • Voluntary departure.
  • Temporary Protection Status (TPS).
  • T visas.
  • U visas.
  • VAWA for battered immigrants and VAWA Cancellation of Removal.
  • Special Juvenile Immigrant Status (SIJS).
  • Family based petitions.
  • Convention against Torture (CAT).