Asylum & Refugee

Every year, thousands of people come to the United States in need of protection because they have been persecuted or fear they will be persecuted on account of their race, religion, nationality, membership in a particular social group, or political opinion. Those found eligible for asylum are permitted to remain in the United States.

Unlike the U.S. Refugee Program, which provides protection to refugees by bringing them to the United States for resettlement, the U.S. Asylum Program provides protection to qualified refugees who are already in the United States or are seeking entry into the United States at a port of entry. Asylum-seekers may apply for asylum in the United States regardless of their countries of origin. There are no quotas on the number of individuals who may be granted asylum each year (with the exception of individuals whose claims are based solely on persecution for resistance to coercive population control measures).
 

Obtaining Asylum in the United States: Two Paths

The two main ways of obtaining asylum in the United States are through the affirmative process and through the defensive process.

In the affirmative asylum process, individuals who are physically present in the United States, regardless of how they got here and regardless of their current immigration status, may apply for asylum.  They do so “affirmatively” by submitting an application to USCIS. In keeping with the idea that a genuine asylum-seeker should present himself/herself to authorities “without delay,” asylum-seekers must apply for asylum within one year from the date of last arrival in the United States, unless they can show changed circumstances that materially affect their eligibility or extraordinary circumstances relating to the delay in filing, and that they filed within a reasonable amount of time given those circumstances. They file an asylum application (Form I-589) by sending it to a USCIS Service Center and are seen by Asylum Officers – in non-adversarial interviews.  The interviews take place at one of the eight Asylum Offices throughout the U.S. or, if the applicant lives far from one of those offices, at a District Office.

It is important to note that affirmative asylum applicants are almost never detained.  They are free to live in the U.S. pending the completion of their asylum processing with USCIS and, if found ineligible by USCIS, then with an Immigration Judge (see U.S. “Defensive” Asylum Processing with EOIR).  Normally, an affirmative asylum applicant is interviewed by USCIS within 43 days of application and, if not approved, is referred by USCIS to an Immigration Judge at the Executive Office for Immigration Review (EOIR) for further and de novo consideration.  The time period is somewhat longer if the applicant does not reside near one of the eight Asylum Offices and an Asylum Officer is required to go to a distant District Office to conduct the interview.  Asylum applicants referred to an Immigration Judge for such processing are also not detained.

Since the successful asylum reforms of 1995, this processing is usually completed within 6 months of the initial application, including processing by the Immigration Judge if USCIS could not approve the application and referred it to the judge.  If USCIS can approve the application, the decision is usually issued within 60 days from the initial application.  During this time, most asylum applicants are not authorized to work.  For more details on the procedures and timeframes involved in this processing, see What is the Affirmative Asylum Process?.

For the latest statistics on the affirmative asylum program, see the Monthly Statistical Report, a publication of the DHS Office of Immigration Statistics. U.S.

U.S. “Defensive” Asylum Processing with EOIR

Immigration Judges with the Executive Office for Immigration Review (EOIR) hear asylum applications only in the context of “defensive” asylum proceedings.  That is, applicants request asylum as a defense against removal from the United States.  Immigration Judges (IJs) hear such cases in adversarial (court-room-like) proceedings: the IJ is the judge that hears the applicant’s claim and also hears any concerns about the validity of the claim raised by the Government, which is represented by an attorney.  The IJ then makes a determination of eligibility.  If the applicant is not found eligible for asylum, the IJ determines whether the applicant is eligible for any other forms of relief from removal and, if not, will order the individual removed from the United States.

Aliens generally are placed into defensive asylum processing in one of two ways:

• they are referred to an IJ by Asylum Officers who did not grant asylum to them, or
• they are placed in removal proceedings because they
  • are undocumented or in violation of their status when apprehended in the U.S. or
  • were caught trying to enter the U.S. without proper documentation (usually at a port-of-entry) and were found to have a credible fear of persecution or torture.

Asylum-Seekers and Expedited Removal

Most undocumented migrants stopped by immigration officials at a U.S. port-of-entry (POE) may be subject to expedited removal.  This means that, for persons other than genuine asylum seekers, refusal of admission and/or removal from the United States can be effected quickly.

However, some of the individuals arriving at an Immigration POE without proper documentation are genuine asylum-seekers fleeing persecution in their home country.  Because of the circumstances of their flight from their homes and departure from their countries, they may arrive in the U.S. with no documents or with fraudulent documents obtained as the only way out of their country.

Any person subject to expedited removal who raises a claim for asylum – or expresses fear of removal – will be given the opportunity to explain his or her fears to an Asylum Officer.  Recognizing that some refugees may be hesitant to come forward with a request for protection at the time of arrival, immigration policy and procedures require Inspectors to ask each individual who may be subject to expedited removal the following series of “protection questions” to identify anyone who is afraid of return:

• Why did you leave your home country or country of last residence?
• Do you have any fear or concern about being returned to your home country or being removed from the United States?
• Would you be harmed if you were returned to your home country or country of last residence?
• Do you have any questions or is there anything else you would like to add?

If the individual who expresses a fear of return is arriving from Canada at a U.S.-Canadian land border port of entry, or is being removed from Canada and transiting through the United States, the APSO will conduct a threshold screening interview to determine whether he or she must seek protection in Canada instead of the United States. If the individual is eligible to seek protection in the United States, the APSO then will determine whether he or she has a credible fear of persecution or torture.

Our law firms has over 23 years of experience in dealing with these situations. If you are in removal process, or believe you can qualify for asylum, schedule  your consultation today.