Asylum

By Brandon Gillin, Seattle Asylum Lawyer

Tens of thousands of people flee persecution in their home countries each year and seek asylum in the United States. When asylum is granted, asylees may live and work in the United States and have a pathway to citizenship. While a grant of asylum does not have an expiration date, it may be revoked in certain circumstances. This article describes the requirements and procedures of applying for asylum as well as the benefits once asylum is granted.

While there have been recent changes to both the eligibility and procedural aspects of asylum, this article will focus on the general statutory requirements.

Who may apply for asylum?

In order to qualify for asylum, you must (1) be physically present in the United States and (2) meet the definition of a “refugee.” A refugee is defined as someone who cannot return to their home country due to past persecution (or well-founded fear of future persecution) by the government or a group the government is unable to control. The persecution must be based on one of five protected grounds: the refugee’s race, religion, nationality, membership in a particular social group, or political opinion.

There are three circumstances where you may not be eligible to apply for asylum even if you meet the definition of a refugee:

• You filed for asylum more than one-year after arriving in the United States (NOTE: There are some exceptions to the one-year filing deadline);
• You previously applied for and were denied asylum; or
• You may be removed to a safe third country where your life or freedom would not be threatened.

Your immigration status does not impact your ability to apply for asylum.

Who has the burden of proving eligibility for asylum?

You, as the asylum applicant, have the burden of proving persecution or a well-founded fear of persecution. Proof includes your own testimony if the asylum officer believes you to be credible and persuasive. You may be required to provide additional evidence to support your testimony, unless you demonstrate that you do not have access to the evidence.

Credibility is determined based on the totality of circumstances, and there is no presumption of credibility. This means that the asylum officer considers your demeanor and responsiveness, the plausibility of your testimony, the consistency between your written and oral statements, and any inaccuracies in your testimony.

The government has significant discretion to deny asylum applications. Despite having credible evidence of persecution, you may still be denied asylum if the asylum officer finds that:

• You persecuted a person based on one of the five protected grounds (the “Persecutor Bar”);
• You have been convicted of a particularly serious crime, such as an aggravated felony, and you constitute a danger to the community;
• You committed a serious nonpolitical crime before arriving in the United States;
• You present a danger to the United States; or
• You were firmly resettled in another country before arriving in the United States.

What is process to obtain asylum?

There are two ways to seek asylum. First, you may seek asylum affirmatively by applying for asylum within one year of arriving in the United States. Second, you may assert an asylum claim defensively during removal proceedings.

Affirmative Process:
If you are not in removal proceedings and affirmatively apply for asylum after arriving in the United States, your case will be reviewed by U.S. Citizenship & Immigration Services (“USCIS”), an office within the Department of Homeland Security (“DHS”). It is a multi-step process that may take several years to complete.

First, you will apply for affirmative asylum by filing Form I-589, Application for Asylum and for Withholding of Removal, with USCIS within one year of arriving into the United States. You cannot apply for work authorization until 150 days after you filed your completed asylum application.

Second, after receiving your application, USCIS will conduct background and security checks. USCIS will also send you a notice to visit an application support center for fingerprinting.

Third, you will attend an interview with USCIS. At this interview, you are allowed to bring an attorney or representative with you. All interviews are conducted in English. If you need an interpreter, you are allowed to bring one with you, but USCIS will not provide one for you. You are also permitted to bring witnesses to testify in your support.

Fourth, the USCIS Asylum Officer informs you whether your application is granted. While USCIS aims to make a decision on your application within 180 days, it often takes significantly longer. If the Asylum Officer decides you meet the definition of a refugee and are not barred from being granted asylum, you will be granted asylum.

If the Asylum Officer decides not to approve your application for asylum and you are otherwise without lawful status, your case will be referred to an Immigration Judge within the Department of Justice’s Executive Office for Immigration Review (“EOIR”). You will be issued a “Notice to Appear” that informs you when and where you must appear in court. The Immigration Judge will then review your case and make a decision either granting or denying your asylum application.

Defensive Process:
Asylum may also be asserted as a defense to removal if you are in removal proceedings. Rather than USCIS having jurisdiction over your case, the EOIR will have jurisdiction.

You may assert a defensive asylum claim in several situations. First, you may defensively assert asylum if USCIS referred you after it did not approve your application. In this case, you do not need to refile an asylum application. Second, you may assert asylum as a defense if you are apprehended at a port of entry or internally and you are placed in removal proceedings.

You will be issued a “Notice to Appear” informing you of your court date. Unlike an affirmative application asylum interview, the proceeding in immigration court will be adversarial. This means that the United States will be represented by an attorney from Immigration and Customs Enforcement (“ICE”). You are allowed to have an attorney represent you, but you will not be provided one by the government. However, unlike an affirmative interview, an interpreter will be provided.

If the judge determines you are eligible for asylum, it will be granted. If the judge determines you are not eligible, s/he will evaluate whether you are eligible for other relief from removal. If you are not eligible for any form of relief, you will be ordered removed from the United States.

What happens once asylum is granted?

There are numerous benefits and protections offered to asylees. These include:

• You are protected from being returned to your home country;
• You are automatically eligible to work;
• You are entitled to certain public benefits, including Social Security Income and Medicaid;
• You may travel abroad (with prior permission from DHS);
• You may apply to become a Lawful Permanent Resident (“LPR”) one year after the date you were granted asylum;
• You may later apply for citizenship after becoming a LPR; and
• Your spouse and unmarried children under age 21 at the time you file your application may also be granted asylum if they accompany you or follow to join. You must file Form I-730, Refugee/Asylee Relative Petition, within two years of being granted asylum.

However, you should be aware that your asylum status is not permanently guaranteed. It may be terminated if:

• Conditions in your home country have fundamentally changed and there is no longer a fear of persecution;
• You voluntarily choose to seek protection in your country of nationality;
• You acquire a new nationality; or
• An event occurs that would have made you ineligible for asylum when you applied.

If your asylum is terminated, you are subject to removal.