1. What is asylum?
In the United States, any foreign national, whether legally or illegally here, may apply for asylum if it can be demonstrated that he/she meets the definition of a “refugee.” The legal definition of refugee is found in Section 101(a)(42) of the Immigration and Nationality Act (INA) which states, in part, that a refugee is someone who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Section 208 of the INA, in turn, defines the general requirements and conditions for granting asylum. It is important to note that while many factors and circumstances are taken into consideration, there are also many bars preventing applicants from filing, so anyone thinking of applying for asylee status must first make sure that he or she is not disqualified. For purposes of this brief overview, we are only discussing applying for asylum affirmatively-not defensively, for example, in Immigration Court.
2. How do I apply for asylum?
In order to affirmatively apply for asylum, one must generally do so within one year of entry into the U.S. In addition to filing Form I-589, the applicant should provide corroborating evidence, a detailed personal declaration, and demonstrate any relevant country conditions that would make it unsafe for him or her to return.
In addition, applicants should submit passport-sized photographs, copies of their passport, and any other additional identification documents. While it is not necessary to have an attorney prepare the case, it would certainly be worthwhile to consult with one in order to determine what evidence might be useful. Materials can range from expert declarations to medical reports, country condition reports and major news resources.
3. What is the process after filing my application?
After applying, U.S.C.I.S. will send the applicant a receipt notice, followed by a biometrics appointment. Lastly, applicants will be notified of the time and place for their asylum interview in which they will meet with an asylum officer who will evaluate their case.
The duration of time between receiving the interview notice and the date of the interview varies. During that time that the application is pending, however, applicants will not accrue unlawful presence. Additionally, applicants may apply for work authorization after 150 days of filing.
4. What are the different grounds of persecution?
When seeking asylum, an applicant must show that he/she has been persecuted or will be persecuted upon return to his/his native country. The five grounds upon which an applicant may base his/her claim are:
· Persecution based on race
· Persecution based on religion
· Persecution based on nationality
· Persecution based on political opinion
· Membership in a particular social group
o The Board of Immigration Appeals (BIA) defines this as persons who share common immutable characteristics
5. What are some existing bars to asylum?
Applicants should be wary of the statutory bars, including:
1. One-year filing deadline (exception to this explained in #6)
An applicant’s date of entry will be examined in order to determine whether or not the application was timely filed.
2. Persecution of Others
An applicant is deemed a “refugee” only if persecution applies to the applicant himself. Any person that has, in any way, participated in the persecution of another person based on race, religion, nationality, membership in a particular social group, or political opinion is ineligible for asylum. Even if the applicant has been persecuted in the past, or has a well-founded fear of future persecution, any participation as a persecutor will disqualify the applicant from asylum even if he/she legally meets the definition of a “refugee.”
3. Conviction of a “particularly serious crime”
An applicant previously convicted for a particularly serious crime who constitutes a danger to society is ineligible for asylum. Juvenile convictions do not constitute a “particularly serious crime” convictions, but aggravated felonies, drug-related offenses, and crimes of violence likely do.
4. Conviction of a serious non-political crime outside of the U.S.
Any applicant previously convicted of a “serious nonpolitical crime” is statutorily ineligible for asylum. This would be a crime not committed out of genuine political motives; not directed towards the modification of the political organization or structure of the state; and in which there is no direct, causal link between the crime committed and its alleged political purposes and object.
5. Terrorism-related Bars
If an applicant is reasonably believed to be involved with a terrorist organization or activity, he/she is not eligible for asylum. If an applicant has previously engaged in terrorist activity, and/or is involved with a political group that condones terrorist activity, then the government will likely classify that individual as a danger to US security.
6. Firm resettlement
If, prior to the applicant’s arrival in the U.S., he or she entered into another nation with or, while in that nation, received an offer of permanent resident status, citizenship, or some other type of permanent resettlement, that person will be considered to have “firmly resettled.” Subject to certain exceptions, individuals who may safely settle in another country will normally not qualify for asylum.
6. Are there exceptions to the one-year filing deadline?
There are some exceptions to the filing deadline. They include, for example, changed circumstances as well as extraordinary circumstances. What will or what will not be considered a “changed” or “extraordinary” circumstance(s) excusing the late filing is very fact sensitive.
7. Can I work while my asylum application is pending?
An applicant may apply for employment authorization after 150 days of filing if there has been no decision on the application. However, if delay in processing the application is due or attributable to the applicant, the employment authorization “clock,” will stop, resulting in delay.
8. What happens if asylum is not granted after my interview?
Any applicant who is not in lawful status will be referred to Immigration Court for removal proceedings if the asylum application is denied by USCIS. In Immigration Court, the applicant-now called the Respondent-may renew the application before the Immigraiton Judge who after hearing the case, will be render an independent decision on the matter.
9. What are some benefits of receiving “asylee status”?
Upon receiving “asylee status”, one can legally be authorized to work in the U.S. and apply for an Employment Authorization Document (EAD).
More importantly, after a year of asylee status, a person may apply for permanent residence through the adjustment of status process. Additionally, upon a grant of asylum, the individual may apply for his/her dependents to accompany him/her here in the US as asylee derivatives.
10. Can I lose my status as an “asylee”?
There are some instances in which an asylee can lose his/her status. Discovery of fraud in filing for the application, commission of certain crimes, as well as a finding that the asylee no longer meets the definition of a refugee can potentially result in the termination of one’s status.