U.S. Asylum Attorney
The right of asylum is a very old principle that gives people the right to run away from their homes and seek refuge somewhere safe when they experience persecution. It is now a part of the 1948 universal Declaration of Human Rights as well as the 1951 Refugee Convention. Under United States law, asylum is protection given to an individual, allowing him to stay in the United States instead of getting deported to their country where they fear persecution.
It is important to note that under United States Immigration law, refugees are different from asylees, or those that are granted asylum. A refugee is an individual that has gone through the U.S. resettlement program, a completely different process
In order for a person to apply for asylum, they must be either physically in the United States or seeking to enter at a port of entry into the United States. There are two forms of asylum, depending on the status of the person claiming it.
Types Of Asylum In The United States
A person who is not going through removal proceedings may apply for asylum in the U.S. The application should be filed with the United States Citizenship and Immigration Services (USCIS). Since asylum is applied for by a person who is already in the U.S. or at a U.S. port of entry, if the application for asylum is denied, the person will be referred to the Department of Justice for removal proceedings. When that happens they can re-apply for asylum but for defensive asylum this time.
Process For Application
Step 1: The number one thing to do before applying for asylum is to arrive in the United States. This is because, as mentioned, asylum is only available to those who are already in the country.
Step 2: Next is to fill out and file the Form I-589 known as the Application for Asylum and for Withholding of Removal. The application must be filed within a year from the person’s last arrival in the United States. The filing is free of charge.
The USCIS has a set of qualifications that determine if a person is eligible for asylum. If the following circumstances are present, the applicant is barred from applying:
- The applicant did not comply with the filing deadline of one year. The count towards the one-year deadline begins from the date of the person’s last arrival in the United States.
- The applicant previously applied for asylum before an immigration judge or the Board of Immigration Appeals and was denied.
- It is possible to remove the person into another safe country with which the United States has a two-party or multi-party agreement.
The law provides for exceptions under a claim of changed circumstances or extraordinary circumstances.
Step 3: Once the completed application form is received by the USCIS, the applicant will receive a confirmation of receipt and a notice to visit the application support center for fingerprint capture. The ASC Appointment Notice needs to be presented for the fingerprinting appointment. If the applicant is also requesting asylum for a spouse and/or a child, these individuals should also come to the appointment.
Step 4: After the biometrics are taken, the applicant will receive an Interview Notice with information on the schedule and venue of the asylum interview. The USCIS schedules interviews starting with the most recently filed and going back towards older applications.
Interview schedules may be rescheduled to before the original schedule, on the same date of the original schedule but at a different time, or within 45 days after the original interview date. Rescheduling is based on good cause or exceptional circumstances.
This is described as a reasonable cause for not being able to show up for the interview. The reasonable cause depends on the person’s individual circumstances so there is no specific list of reasons and the USCIS looks at each unique case individually. However, repeated requests to reschedule may negatively affect the determination of a good cause.
What Happens If Good Cause Is Not Established?
If good cause is not established, the interview will proceed on the original date and time scheduled. If the person fails to appear it will be marked as a missed interview. This has different consequences depending on the person’s immigration status.
If the applicant is a lawful immigrant, the application will be administratively dismissed within 46 days from the date of the missed interview. The applicant will be ineligible for employment authorization unless they are able to establish exceptional circumstances.
- Exceptional Circumstances
Under the Immigration and Nationality Act or INA, exceptional circumstances include:
- Incidents involving battery or extreme cruelty to the applicant or their child.
- The onset of serious illness of the applicant, their spouse, child, or parent.
- Death of the applicant’s spouse, child, or parent.
While exceptional circumstances are not limited to the list above, it is still under the prerogative of the asylum office to examine the facts of each case and determine if exceptional circumstances exist. These must be compelling circumstances that justifiably warrant rescheduling.
A request for the determination of exceptional circumstances must be submitted in writing to the asylum office. The explanation must contain a detailed description of the exceptional circumstances that are being claimed.
Any supporting documents must also be presented such as medical records, death certificates, police reports, and so on.
What Happens If Exceptional Circumstances Are Established?
If the applicant succeeds in establishing exceptional circumstances but the case has already been dismissed and closed, the next steps will depend on their immigration status.
If they are a lawful immigrant, the application will be reopened and the interview will be rescheduled. A new interview appointment notice will be sent.
An unlawful immigrant status that has been referred to immigration court for removal will remain in the immigration court’s jurisdiction until such time that the removal issue is decided upon.
What If The Asylum Case Has Already Been Submitted To ICE?
If exceptional circumstances were established but the asylum application was already closed and forwarded to ICE for removal proceedings, the applicant must request dismissal of the removal proceedings. The United States Immigration and Customs Enforcement office handles the removal case. The applicant must present a copy of the asylum office’s notice of the “Determination Demonstrating Exceptional Circumstances”. This informs ICE that the office found that the applicant successfully proved exceptional circumstances making them qualify for a rescheduled interview.
This is not a guarantee that ICE will join a motion to dismiss the removal proceeding. The agency will determine their action based on their discretion. If ICE does not join the motion to dismiss, the applicant can file their own motion with the immigration court.
If the immigration court dismisses the removal proceedings, the asylum application will be reopened by the asylum office and an interview will be rescheduled. If the immigration court denies the motion to dismiss the removal proceedings, the asylum application will be within the jurisdiction of the immigration court.
What Happens If The Applicant Fails To Prove Exceptional Circumstances?
If the applicant fails to establish exceptional circumstances and the asylum application has not yet been resolved, the originally scheduled interview will proceed as scheduled and the applicant is required to attend. If the original appointment has already passed and the applicant missed it, the asylum application will be referred to the immigration court 46 days after the original schedule that was missed.
The failure to appear for the interview will be considered as an applicant-caused delay in cases where the asylum was filed in order to meet requirements for employment authorization. If the asylum case is not resolved by the date that the employment authorization is applied for, the latter will be denied.
Step 5: The interview itself shouldn’t last long, the average lasts about one hour, but again, this depends on the specific circumstances of each case. The applicant is allowed to bring an attorney to attend the interview with them. A non-English speaker is allowed to bring an interpreter.
Step 6: The asylum officer determines if the applicant is eligible for seeking asylum. Under U.S. law, an applicant must qualify as a refugee to become eligible for asylum. This means that the applicant must prove that:
- They were persecuted in the past or have a strong belief based on strong evidence that they will be persecuted in the future in their home country.
- The persecution they experienced must have been because of either race, religion, nationality, political opinion, or association with a certain social group.
The applicant must also not be barred from applying for asylum as previously discussed in Step 2 above.
Step 7: Generally, the applicant is asked to return to the asylum office after two weeks to get the decision on the application.
An application for defensive asylum is for a person who is involved in removal proceedings. The application is filed with the Department of Justice at the Executive Office for Immigration Review (EOIR) and will be heard by an immigration judge. The asylum is basically an application for “defense against removal from the U.S.”
There are two ways of falling under defensive asylum processing:
- The applicant was found ineligible for affirmative asylum and was referred to immigration court by the USCIS.
- The applicant is involved in removal proceedings after having been arrested without proper immigration documents in the United States or a U.S port of entry. An arrest due to immigration status violations.
They were arrested by United States Customs and Border Protection trying to get into the U.S. illegally and an asylum officer found them to have a legitimate fear of persecution in their home country. This is called the “credible fear process” conducted by officers through an interview with a person seeking asylum who has been put in expedited removal proceedings.
A defensive asylum case is heard in immigration court. The case will be between the applicant, as an asylum-seeker, and the United States government, which is represented by a lawyer from ICE. The applicant may appear with their attorney if they have one.
The immigration judge will decide on whether or not the applicant will be granted asylum, based on eligibility. If they are not eligible, other alternatives to removal will be explored by the court. However, if the court finds no applicable form of relief from removal, the judge will order the person removed from the U.S.
Any foreign citizen who wants to apply for asylum must comply with the following requirements to be eligible:
- They are already in the United States or at a United States port of entry.
- They do not want to return or are unable to return to their home country because they experienced persecution or are afraid to face persecution.
- The persecution is by reason of either race, religion, nationality, association, or membership in a particular social group, or political opinion.
Any citizen from any country may apply for asylum protection regardless of their immigration status.