Eligibility For Asylum In The United States
Generally all persons – regardless of their immigration status – are allowed to apply for asylum. If you are already in removal proceedings, you must submit your asylum application to the immigration judge assigned to your case. This is called a defensive asylum application because your asylum claim is serving as a defense from removal from the United States. If you are not already in removal proceedings and you want to apply from asylum, you must file your asylum application to the Bureau ofU.S. Citizenship and Immigration Services (USCIS). This is called an affirmative asylum application.
A person who wins asylum is referred to as an asylee, and there are many benefits that come with being an asylee. For example, if you are an asylee, you may bring your spouse and children under the age of 21 to the United States. After one year, an asylee may apply for U.S. permanent residency and may eventually apply to become a U.S citizen.
Affirmative Asylum Application
If you are not in removal proceedings and you have not been previously denied asylum or issed a removal order, you may file an affirmative application for asylum. To file affirmatively, you must mail your asylum application to the government. If your asylum application was submitted properly, you will receive a notice confirming that your application has been accepted for processing.
The next notice you will receive will be for a fingerprints appointment for you and any spouse or child of yours that is in the United States and was included on your application. The next notice you will receive after the fingerprints notice will be the notice giving you the date, time, and place of your asylum interview.
Usually you will receive the asylum officer’s decision within three weeks of your interview date. If the asylum officer granted you asylum, you will be sent an I-94, Arrival/Departure Card showing that you have won asylum in the United States. The I-94 card is proof of your valid asylee immigration status and can be used to apply for a social security and an employment authorization document.
In most cases, if the asylum officer did not grant you asylum, your asylum application will be referred to an immigration judge. You can “renew” your asylum application in front of the immigration judge. This means the immigration judge will look at your application again to see whether you meet the requirements for asylum, and you will be given an opportunity to tell the immigration judge what happened to you in your home country and why you are afraid to go back.
After reviewing your asylum application and listening to your testimony and the testimony of any witnesses and/or experts on your behalf, the immigration judge will either grant or deny your asylum application. If you are granted asylum, you will be issued an I-94, Arrival/Departure card showing that you have won asylum in the United States. The I-94 card is proof of your valid asylee immigration status and can be used to apply for a social security and an employment authorization document. If you are denied asylum, you may want to appeal the immigration judge’s decision to the Board of Immigration Appeals (BIA). However, appeals to the BIA are very difficult to win, and you should try your best to win your asylum case either before the asylum officer or the immigration judge.
Like defensive asylum applications, affirmative applications for asylum must be filed within one year of the date of your arrival in the United States. If you apply for asylum more than one year after the date of your arrival, you must show that “extraordinary circumstances” prevented you from filing your asylum application on time. It is very difficult to meet the “extraordinary circumstances” test.
Proving You Are a Refugee
If you are applying for asylum, you must prove that you are a refugee. This means that you have to show that you are unwilling or unable to return to your home country because of past persecution or a “well-founded” fear of future persecution because of your race, religion, nationality, membership in a particular social group, or political opinion.
You may be ineligible for asylum if the government can show that you lived safely in, and were accepted as a permanent resident of, another country after fleeing your home country and before coming to the United States.
Burden of Proof for Asylum
To be granted asylum, you must prove that there is a “reasonable probability” that you will be persecuted if forced to return to your home country.
You must also show that you have both an “objective” and “subjective” well-founded fear of future persecution.
To prove that you have an objective fear of persecution, you must show that a reasonable person in your circumstances would fear persecution. Sometimes this can be shown by providing evidence of country conditions – government and news reports about the situation in your country.
To prove that you have a subjective fear of persecution, you must show that your fear is genuine.
Asylum is always discretionary. This means that the immigration judge must decide that you deserve asylum after finding that you meet the eligibility requirements.
If you have been admitted to the United States as a refugee or if you were granted asylee status in the United States within the previous two years, you may request follow-to-join benefits for your spouse and/or unmarried children under 21 years of age. This is also referred to as “derivative status” because your spouse and children will derive their asylum status from you.
To apply for derivative status for your spouse and children, you will need to file Form I-730, Refugee/Asylee Petition. You will need to complete a separate application for your spouse and a separate application for each of your children. Generally, you must file Form I-730, Refugee/Asylee Petition, within two years of the date you received asylee or refugee status (this deadline may be extended for humanitarian reasons).
Once you have asylee or refugee status, you can work in the United States. However, you need to file Form I-765, Application for an Employment Authorization Document, and receive an Employment Authorization Document before you may begin work.
Asylees and refugees are also allowed to travel outside the United States. However, they must have a valid Refugee Travel Document to reenter the United States. You can apply for a refugee travel document by filing Form I-131, Application for Travel Document.
Kate Lincoln-Goldfinch is experienced in applying Asylum cases for Austin clients.
This page serves as a resource for Austin Immigration Attorneys and advocates on how to apply for Asylum in Austin.