Asylum

NOTE: Asylum is a very confusing area of immigration law. It is a good idea to talk to an immigration lawyer with experience working on asylum before applying.

What is asylum? Who can get asylum status?

Asylum is a form of immigration relief. It may be granted (given) to a person from another country who is in the U.S. This person can’t or won’t return home because of past persecution or a well-founded fear of persecution. Persecution means mistreatment or abuse. The abuse or fear of abuse is usually because of someone’s:

• Race
• Religion
• Nationality
• Membership in a certain social group
• Political opinion

These are “protected grounds.” The person applying for asylum must establish a connection (known as the “nexus”) between the harm and the protected grounds, meaning they were harmed or fear harm if they return home because of who they are. The persecutor can be the government of the home country or an entity that the government is unable or unwilling to control. Gangs, rebel groups, paramilitary groups, and abusive spouses may all qualify as a persecutor.

A person seeking asylum asks for it and pursues their claim for protection once inside the United States. Note: A foreign national that enters the United States as a refugee is different. They already had their claim for protection decided and approved before they came to the United States. They may get assistance from the US government. A person seeking asylum does not receive any assistance from the US government.

A person can ask for asylum:

• after entering the U.S. on a non-immigrant visa
• presenting him/herself at a port of entry, or
• entering the U.S. without inspection (in other words, without permission or proper papers)

as long as they file their case within 1 year of entry. There are some exceptions to the 1-year filing deadline (see below), but mostly, the rule is strictly enforced.

Certain convictions and unconvicted criminal activity can make a person ineligible to get asylum, whether or not the criminal activity happened in the U.S. or in another country.

Also, a person can be barred (banned) from asylum if they had already firmly resettled to a third country.

How long after getting to the U.S. do I have to apply for asylum?

You must apply for asylum within 1 year of the date that of your last arrival in the United States. BUT there can be an exception to the 1-year filing deadline if you can show that there are:
• conditions or situations that changed enough since you entered the US that make you eligible for asylum now when you weren’t before or
• extraordinary conditions or situations related to your delay in filing BUT you filed within a reasonable amount in spite of those conditions AND you filed within a reasonable amount of time given those conditions or situations.

How can I apply for asylum?

If you ARE NOT in removal (deportation) proceedings, you can file an application for asylum with the United States Citizenship and Immigration Services (USCIS). These applications are known as affirmative asylum applications. You present your case to an asylum officer that works for USCIS. That officer decides if you meet the legal rules for asylum.

If you ARE in removal proceedings, you can assert asylum (as well as other claims) as a defense to your removal, meaning you have a reason you shouldn’t be deported. These are known as defensive asylum cases. In these cases, you present your case to an immigration judge that works for an immigration court that is part of the Executive Office for Immigration Review (EOIR). You can assert a defensive asylum case if you were:

• referred to an immigration judge by USCIS after you went through the affirmative asylum process, but they did not give you asylum; or
• placed in removal proceedings because you were caught:
  • in the United States or at a U.S. port of entry without proper legal documents or in violation of your immigration status or
  • by a U.S. Customs and Border Protection (CBP) officer while trying to enter the U.S. without proper legal documents, then placed in the expedited (fast) removal process, and found to have a credible fear of persecution or torture by an asylum officer.

What if I am in removal proceedings but do not meet all the requirements for asylum?

If you are in removal proceedings and apply for asylum, they consider 2 alternative defenses for you called “withholding of removal” and “Convention Against Torture (CAT) relief.” Withholding of removal and CAT relief can only be granted by an immigration judge. This means they can only be pursued in defensive asylum cases.

Asking for withholding of removal is for people who did not meet the 1-year filing deadline. It may also be available for people who have been convicted of certain crimes that could keep you from getting asylum. If you are granted withholding of removal, you can try to get a work permit, but you won’t be able to apply for a green card or citizenship.

Convention Against Torture (CAT) relief is to people who can show that it is more likely than not that they will be tortured if they are sent back to their home country. There are not bars to eligibility for CAT relief and you do not have to show that you fear torture based on a protected ground like the 5 protected grounds listed earlier. So, if you can’t show a clear connection (nexus) between the harm you fear and your race, religion, nationality, political opinion, or membership in a particular social group, you might still be able to get protection under CAT relief.

If I am undocumented, can I still apply for asylum?

If you are undocumented and are not in removal (formerly called deportation) proceedings, you can do an affirmative asylum application at the Asylum Office even if you are no longer or were never in status. NOTE: Be careful! This can be risky because you are making yourself known to immigration. If your application is denied, you could be deported. Talk to an immigration lawyer with experience in asylum law to see if your situation puts you at increased risk of deportation.

If this is your scenario, we advise you to contact a lawyer. We do not suggest representing yourself.

Can a victim of domestic violence file for asylum?

A person who is not a U.S. citizen and is a victim of sexual violence and other forms of gender-based abuse may be able to get asylum status if the abuse is connected to any of the 5 “protected grounds” (race, religion, nationality, membership in a particular social group or political opinion) listed above.

In general, someone who experienced domestic violence or sexual assault in another country may be able to apply for asylum in the U.S. if the government in their home country is “unwilling or unable” to protect the victim from the violence perpetrated against them.

It has become harder to win an asylum case based on domestic violence. Many judges have been rejecting these kinds of asylum applications. But, under the law, domestic violence survivors can still be found eligible for asylum if they meet the legal requirements, and applications are still being approved. 

An undocumented person can apply for asylum. BUT if the application is denied, they could be deported. Talk to an immigration lawyer who has experience working on asylum cases before applying.

What if I need an interpreter because I don’t speak English?

If you are applying for asylum under the affirmative asylum process (you aren’t in removal proceedings, formerly deportation) you have to bring your own interpreter to the asylum interview. The government does not provide one for you. The interpreter:

• can’t be your lawyer or representative
• can’t be a witness testifying on your behalf
• must be fluent in your language and in English
• must be at least 18 years old

If you are asking for asylum under the defensive asylum process as a defense to removal (formerly deportation) proceedings, the government does provide an interpreter for you at the asylum hearing and in all court proceedings.

Is there a fee to apply for asylum?

There is no fee to apply for asylum, but there may be some small fees for things like getting a criminal background check or getting other supporting documents.

Once I have applied for asylum, can I get a work permit?

Technically, you can apply for an Employment Authorization Document (commonly known as a work permit) 150 days after your asylum application is filed. Your work permit can be issued 180 days after the case is filed.

BUT getting a work permit can be hard because of the “asylum clock.” The clock starts when your application is filed with USCIS or is lodged with the immigration court, but the clock stops if you cause a delay. The days don’t count while the clock is stopped. For example, you can cause a delay by turning down an expedited hearing date if you have a defensive case. Because of the backlog of immigration cases, turning down an expedited hearing date could mean waiting years for another hearing. You can’t get a work permit during that time.

How long does the asylum process take?

According to the law, a decision should be made on your asylum application within 180 days after the date you filed your application. But the process often takes much longer. The average time is nearly 1,000 days from the time you apply for asylum until you get the immigration court’s decision.

What are the benefits of asylum status?

If your asylum application is approved, you:

• are protected from being sent back to your home country, or the last country you were a resident of if you don’t have a home country
• are granted work authorization, known as an Employment Authorization Document (commonly known as a work permit)
• can travel out of the country with a refugee travel document issued by USCIS. BUT DO NOT travel to your home country without getting legal advice! It could affect your asylum status if you go back to the country you claim to be afraid of.
• can petition for your spouse and/or children to get “derivative asylum status” (see below)
• can apply for legal permanent residency (a green card) 1 year after being granted asylum. But you must be physically in the U.S. for that year.

Note: When you apply for permanent residence (a green card), your spouse and children are also eligible to apply for green cards if they were admitted to the United States as asylees following your grant of asylum, or if they were already in the U.S. with you and were part of your grant of asylum.

Can my asylum status help my family members?

If you have already been granted asylum, you can apply for derivative asylum status for your spouse and/or unmarried children under age 21. Derivative asylum status means that your spouse and/or children can get asylum status based on your own asylum status. You can’t apply for derivative asylum status for any other family members, like parents or siblings.

To meet the definition of spouse, you need to be legally married following the laws of your home country. But the U.S. does not recognize some marriages, even if they are considered legal in your home country. An example is polygamous marriages (more than one spouse).

Unmarried children under the age of 21 could include a stepchild if they became your stepchild before s/he turned 18. It can also include an adopted child who was adopted before the age of 16. In the case of adopted siblings, if the younger sibling was adopted before turning sixteen, the older sibling will qualify if they were adopted before their 18th birthday.

To ask for asylum status for your family, file the proper paperwork within the first 2 years of being granted your asylum status. You may be able to sponsor your family members, whether they are in the U.S. or in your home country.

Can I become a lawful permanent resident if I have asylum status?

If you have asylum status, you may apply for your lawful permanent residency 1 year after being granted asylum if you:

• have been physically present in the U.S. for at least 1 year after getting your asylum status
• continue to meet the definition of an asylee (or continue to be the spouse or child of an asylee
• have not moved and settled in any foreign country and
• continue to be admissible to the U.S. BUT if you are deemed inadmissible, you might be able to get a waiver

There are many forms that need to be filed if you want to apply to become a legal permanent resident.

If this is your scenario, we advise you to contact a lawyer. We do not suggest representing yourself.