The fear of persecution from your home country is one reason you could be seeking asylum in the US. Seeking asylum involves complicated procedures and paperwork to ascertain that you are not a threat to the US.
In this article, our California Immigration Attorney will provide details about the American immigration systems, eligibility, requirements, and asylum process.
What is Asylum
Your home country could be unsafe for you due to your ethnicity, race, or beliefs, leading you to become a refugee in another country. If you happen to come to the US, the country could offer you asylum if you meet a refugee's definition under international law.
International law defines a refugee as a person who cannot or is unwilling to return to their home country due to past persecution or the fear of persecution in that country. The main reasons for persecution or fear of persecution in the future include:
- Being of a certain race or ethnicity
- Being of a particular nationality
- Membership in certain social groups
- Based on your political opinion
The US is a signatory to the UN 1967 protocol and therefore has a legal obligation to offer protection to asylum seekers who qualify as refugees.
Asylum offers protection from being returned to your home country and the chance to work in the US, travel overseas, or bring your family to the US. You could also qualify for government programs such as Refugee Medical Assistance.
You are eligible for applying for asylum in the US if:
- You are at a port of entry in the US.
- You submit your application within one year of being in the US.
In some cases, you might still apply for asylum after the one-year deadline if you can show that:
- Circumstances have substantially changed materially affecting your eligibility for asylum. Some of these changed circumstances could include changes in your home country's conditions, changes in immigration legislation, or you were included as a dependent on another person's application for asylum.
- Extraordinary circumstances prevented you from filing before the deadline, such as serious illness, physical or mental disability suffered during the year after arriving in the US. Extraordinary circumstances could also include legal disability, such as being an unaccompanied minor during the year after you arrive in the country.
- You applied within a reasonable time under the circumstances to allow you eligibility for an exception to the one-year deadline.
You will be barred from receiving asylum if:
- You participated in another person's persecution due to that person's race, nationality, political opinion, religion, or membership in a particular social group.
- You have a conviction for a serious crime (usually aggravated felonies)
- You pose a security risk to the US.
- You had firmly resettled in another country before you arrived in the US.
You can apply for asylum in the US through the affirmative or defensive process. Affirmative asylum is the first process if you are not facing deportation charges. Note that you can apply for asylum, even if you entered the US illegally. You will submit your application to the US Citizenship and Immigration Service. If the USCIS denies your application and you are an illegal immigrant, you could reapply for asylum through the defensive process.
You can request asylum through the defensive process by applying if you are facing removal charges. You will submit your application as a defense against removal from the country to the immigration judge of the Executive Office for Immigration Review.
Asylum seekers have the right to legal counsel, but the immigration court will not hire an attorney on your behalf, even if you cannot afford one. The court will require you to present evidence that:
- You qualify as a refugee.
- You have been persecuted in the past.
- You have a substantiated fear of future persecution.
Persons seeking asylum must submit their applications within a year of entering the US (legally or illegally). Those who fail to apply within a year are barred from receiving asylum and could have removal proceedings initiated against them.
Obtaining Affirmative Asylum
You can file for affirmative asylum if you are physically present in the US and would like to obtain protection from deportation. You are eligible whether you arrived lawfully or unlawfully in the US and regardless of your immigration status.
You will have to fill form I 589 (Application for Asylum and Withholding of Removal). The form contains instructions on the filing process, warnings of possible actions, and details of your application’s processing. Seek the help of an immigration attorney to help you with the filing process.
- You must file within one year of arriving in the US unless you can provide evidence for your eligibility for an exception.
- You must answer all the questions asked, even if the answer is "none," "not applicable," or "unknown."
- You must provide detailed information in your answers (you can attach supplement forms or additional sheets to provide more information for the relevant question)
- Applications with missing information will be sent back as missing information.
- You could attach additional written statements of events, dates, or experiences related to your request for asylum to support your case.
- Include your alien number, date, and signature on the cover page and supporting documents
- You can amend your application before or during your asylum interview or immigration hearing. However, if you need to submit documentary evidence, you must do so at least 14 calendar days before your asylum interview.
The form will require your basic information such as:
- Your alien number
- Your residential street address and mailing address (if it is different from your residential address)
- Your spouse
- The names, age, marital status, and residence of all your biological, adopted, or stepchildren even if they are filing a separate asylum process.
- Your spouse or children under 21 who are living in the US
You must attach documentary evidence of your family relationship of all the persons mentioned as your spouse or children. You will submit three copies of your marriage certificate and three copies of proof of termination of previous marriages if you include a spouse in your application.
You must also attach three copies of each child’s birth certificate for all unmarried children under 21 years in your application.
Where primary evidence of your family relationship is absent, you can provide secondary documentation such as school, religious and medical records.
You must also provide information about your educational, residence, and employment background in reverse chronology, starting with the most recent.
Note that fabricating any information on your application could lead to the permanent ineligibility to INA benefits and criminal charges. Any person providing you with assistance in filling out the application must sign and provide their name and address. Failure to provide their signature will lead to the return of your application as incomplete.
Once you submit a complete application and complete the biometrics procedure, the USCIS Asylum Office will send you a notification with the date, time, and place of the asylum interview. You should bring with you a copy of the form you filed.
The asylum officer will question you under oath to determine whether you qualify for asylum. You can have legal counsel during the interview at your cost. The immigration court does not provide or pay for legal counsel on your behalf if you cannot secure an attorney. You are also allowed to present witnesses in your case.
During the interview, you must bring a competent translator, or the court will consider it a failure to appear. Failure to appear for the interview could lead to your application’s dismissal or direct referral to the immigration court.
You must notify the court as soon as possible if you are deaf or hard of hearing so that the court can provide a sign language interpreter in your language.
You will receive the decision on whether you have been granted asylum 180 days from the day your application was accepted. If your asylum request is granted, you can continue staying in the US and apply for employment authorization and citizenship. If your asylum request is denied, you could be subjected to removal proceedings.
Obtaining Defensive Asylum
Non-US citizens facing removal proceedings can seek asylum through the defensive process. This means that they will be defending against their removal from the US. You could be subjected to the defensive asylum process if:
- You entered the US at a border crossing or a point of entry without the right documentation.
- You are apprehended by Customs and Border Protection officers or the ICE officers upon your entry into the US without proper documentation.
The officers will question your documentation and subject you to expedited removal if you do not have proper documentation in the US. An expedited removal involves the return to your home country without a court hearing.
If you are coming from a country where you fear persecution, you can request asylum as a defense against your removal. Notify the officers immediately during your first contact with them that you intend to apply for asylum for fear of persecution in your home country.
Most people who apply for asylum through the defensive process could remain in detention for several years as the immigration court works through the cases.
The defensive asylum process involves interviews to determine whether you have a credible fear of persecution. The CBP officer will conduct a credible fear screening to determine whether to refer you to an asylum officer who will conduct a formal credible fear interview.
Suppose the CBP officer determines that you have a credible fear. In that case, he or she will refer you to an asylum officer who will establish your reasonable basis for fear of persecution or torture in your home country. You will be referred to an immigration court if the asylum officer determines that you have a significant possibility of showing your eligibility for asylum.
At the immigration court, the immigration judge will determine whether to grant you asylum or authorize removal proceedings. For this process, you will have to file Form I-862. The court will also decide whether you are a flight risk or a security threat to the US.
Petition to Bring Your Family or Relatives to the US
Persecution in your home country not only leaves you without a home and in fear, but it could also separate you from your family and relatives. Fortunately, you can petition your family and relatives to be allowed into the US if you have been granted asylum and are the principal applicant for your family. You can only file such a petition if you were granted asylum or admitted in the US within the last two years.
You can petition to bring your spouse and unmarried children under 21. However, you cannot bring a family or relative if the person:
- Is a spouse or child who had a previous status as a refugee or an asylee
- Is an adopted child whose adoption occurred after the child’s 16th birthday and that child has not been in legal custody or lived with the adoptive parents for a minimum of two years
- A stepchild where the marriage that created the relationship occurred after that child’s 18th birthday
- Either spouse was physically absent at the ceremony, and the marriage was not consummated.
- Is a spouse, whereby the court determines that you entered into a marriage to avoid immigration laws
- Is a parent, sibling, cousin, grandparent, nephew, grandchild, niece, uncle, or in-law
In addition to filling the form, you must provide documents to prove the family relationship exists with the person for whom you file the petition. Some of the documentation you will need includes:
- Evidence of your asylee or refugee status in the US
- A photograph of the person for whom you are filing (it must be frontal, clear, recent, and meet all passport specifications)
- Your marriage certificate and your spouse’s birth certificate if the person for whom you are filing is your spouse
- Any evidence of the legal termination of previous marriages you or your spouse had
- The birth certificate of your child (if you are the natural mother) indicating your name and that of your child
- The child’s birth certificate for whom you are applying indicates your name (as the natural father) and the child’s name, and where applicable, evidence of a name change. Where you were married to the child’s mother, you must submit proof that you had a bona fide parent/child relationship and evidence of financial and emotional support to the child. You must also show evidence of the legal termination of your previous marriage to the child’s mother and evidence of the child's legitimization by civil authorities.
Once you submit the complete application with the relevant evidence, the USCIS will schedule an interview. Your relative will receive a written notice with the time, date, and address of the interview. The USCIS will require your relative and sometimes you to appear during the interview as scheduled.
It is upon you to find an interpreter fluent in the language your relative speaks and English. The USCIS considers your failure to bring an interpreter without cause as a failure to appear for the interview, which could trigger dismissal of your petition.
After Grant of Asylum
After receiving asylum, knowing what to do next, your rights, and your responsibilities will help you navigate your new life in the US. Depending on your asylum application’s details, your children (under 21 years and unmarried) and spouse automatically become asylee or refugees. If not, you can petition on their behalf, as discussed above.
Refugees and asylee are eligible for certain benefits through the Refugee Resettlement Agency. The goal of the agency is to facilitate refugees to settle in the US by:
- Providing money, housing, and living assistance expenses
- Helping you and your family get access to government benefits and services, including food stamps, health care, social security cards, and refugee travel documents
- Helping you enroll in English as a second language class
- Offer counseling, job-training classes, and placement services
- Provide psychological counseling
The specific services the agency offers will depend on individual circumstances such as your income, family size, and savings you have.
Some of these benefits have deadlines, which you must meet if you intend to enjoy them, therefore, remember to ask your immigration attorney for assistance. Other programs have deadlines for how long you can use them, something you should also be aware of, such as five years for employment-related programs.
Other permissions you have as an asylee include:
- You can work in the US (even without an Employment Authorization Document)
- You can apply for an unrestricted social security card.
- You can obtain a state identification card or driver's license from the state in which you reside.
- You can apply for a green card to adjust your status to a lawful permanent resident.
You are allowed to travel abroad if you are an asylee. However, you have to obtain a refugee travel document and ensure that you reenter the US before your travel documents expire. Note that traveling to your home country could lead to your asylee status withdrawal since the government will conclude that you are not afraid of persecution from your home country. You should not use a passport from the country from which you claimed persecution.
Applying for Permanent Resident Status and Citizenship
The law allows you to adjust your status to a lawful permanent residence after living in the US for one year after receiving asylum (the one-year period starts from the date you received the final approval of asylum).
The government does not require you to become a legal permanent status while you are an asylee. However, if you want to enjoy additional benefits such as becoming a citizen, you must become a lawful permanent resident first.
Remaining as an asylee also increases the risk of being returned to your home country if the conditions that put you at risk of persecution have since changed.
Some of the conditions you have to meet before applying to become a lawful permanent resident include:
- You still qualify as an asylee (you still in fear of persecution based on your religion, race, or political opinion from your home country)
- You have lived for at least a year in the US and are still admissible (some causes of inadmissibility include criminal conviction, immigration law violations, and terrorism)
- You have not abandoned your asylee status or firmly resettled in another country (you are said to have abandoned your asylee status if you live outside the US for a significant time, visited your home country, or received permanent residence or citizenship in a third country).
You will present the following documents when applying for LPR status:
- Form I-485 application to adjust status
- Form I-693 report of medical and vaccination record
- Evidence of your asylee status
- Proof of residence in the US for the last year
- Two Passport photographs
If your application to adjust to LPR status is approved, you can wait four years before applying for naturalization (to become a US citizen). Issues often arise when filing for citizenship, especially if you have divorced from your partner, have a criminal conviction, or other issues that could affect your eligibility for US citizenship. Consult your immigration attorney to help you with the process of applying for citizenship.
Find an Immigration Attorney Near Me
When you flee your country for fear of persecution, you are just seeking a place where you can be safe. The US offers a haven for refugees and asylum seekers who meet the eligibility conditions, do not pose a security threat, and are in fear of or are fleeing persecution.
Most asylum seekers and refugees are unaware of the US's immigration laws, end up in detention centers, and sometimes back in their home countries where they face persecution.
Contact the California Immigration Attorney at 424-789-8809 if you or your loved one needs to seek asylum status in the US. Our background as immigration lawyers allows us to represent your interests to ensure that you are safe and have peace of mind, even as you adjust to being in a new country.