Asylum

Under U.S. law, any person who establishes that he or she has a real fear of returning to his or her country may apply for asylum.

Requirements:

  • Feeling a genuine fear due to having suffered:
    • physical harm
    • threats
    • detention
    • past persecution
  • Persecutor is:
    • the Government itself
    • actor or private entity that the Government is not interested in or is unable to control.
  • Persecution is on the basis of:
    • race
    • religion
    • nationality
    • political opinion
    • belonging to a particular social group
  • Relocation
    • It is not safe or reasonable to relocate within the state or country.
  • Advantages
    • The person who wins the case has the right to remain and work legally in the United States.
    • One year after winning asylum may apply to become a permanent resident.
  • Disadvantages
    • The asylum application must be filed within one (1) year of entry into the United States. This deadline may be extended due to extraordinary circumstances.
    • A person who wins the case and travels to his or her home country may be denied re-entry to the United States.

There are two ways to apply for asylum.

Affirmative asylum processing with USCIS.

A person who is not in court may file an asylum application with the immigration agency. To do this, the person must be physically present in the United States. 

The first step is to file the asylum application with the agency and provide evidence showing that he or she has been persecuted in the past or is at risk of persecution if returned to his or her home country. The person will be scheduled for an interview before an asylum officer. 

If the person wins the asylum case, he or she has the right to remain and work legally in the United States. One year after winning his or her asylum case, he or she will be able to apply for permanent residence. But if the asylum officer denies the asylum case, the person will be referred to an immigration judge, thus initiating removal/deportation proceedings. The final decisions of asylum officers are not appealable.  The person will have a second opportunity to present his/her asylum case before the judge.

 

Defensive Proceedings in Immigration Court

Defensive asylum occurs when a person is before an immigration court and applies for asylum as a defense to removal proceedings. The asylum application will be heard by an immigration judge who will independently evaluate the case. To win asylum, the person must provide evidence showing that he or she has been persecuted in the past or is at risk of persecution if returned to his or her home country.

A person who wins an asylum case has the right to remain and work legally in the United States. One year after winning their asylum case, they may apply for permanent residence.

If the judge denies asylum, he or she will issue an order of removal/removal. Prior to deportation, the individual will have the opportunity to appeal the judge’s negative decision to the Board of Appeals (BIA).

The U.S. immigration system is very complex and poses serious challenges for asylum seekers. If you are considering applying for asylum, it is critical to contact an experienced immigration attorney to guide you through the process. This could be the difference between staying in the United States or being deported.

Mayrise DeLaTorre

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