Frequently Asked Questions (FAQ) About Asylum

Frequently Asked Questions (FAQ) About Asylum

How do I apply for asylum?


Typically, if you are not in removal proceedings, you must file the I-589 form and supporting documents, including a personal statement or declaration about the persecution you suffered in the past and/or fear in the future, with USCIS. If you are in removal proceedings, you will need to file your asylum application with the immigration court. The I-589 form, instructions, and other information about asylum can be found on the USCIS government website: http://www.uscis.gov/humanitarian/refugees-asylum/asylum. After your application is submitted, you will receive a "Biometrics Appointment Notice" telling you to go the local USCIS office to be fingerprinted. If you do not go to your appointment to be fingerprinted during the timeframe indicated on the letter, your asylum claim will be denied. Be sure to take the notice you received with you. If you are not in removal proceedings, you will then be scheduled for an interview with an asylum officer, who will issue a written decision after your interview, usually within several weeks. An interpreter will not be provided, so if you are not proficient in English, you will need to bring an interpreter with you to your asylum interview. If you are in removal proceedings, your asylum case will be heard by an immigration judge, who will usually make a decision in court after you have presented your case.  

Who can apply for asylum?
Anyone who is present in the U.S. who qualifies as a refugee, and who was persecuted in the past and/or who fears persecution in the future on account of a protected ground, and who is not barred from applying, can apply for asylum. The agent of persecution must be the government, a quasi-official group, or a group the government is unable or unwilling to control. There is a one-year filing deadline, but some exceptions may apply. The burden of proof is on the asylum applicant to prove he or she is eligible for asylum and that the persecution is on account of a protected ground. A lawyer is the best person to help you determine if you are eligible for asylum and help you meet your burden of proof.

           

Who cannot apply for asylum?
Individuals who have: 1) persecuted others, 2) engaged in terrorist acts, 3) have certain serious criminal convictions in the U.S., 4) committed certain serious non-political crimes outside the U.S., 5) been denied asylum in the past, 6) have resettled or been offered asylum in a third country, or 7) who are a danger to U.S. security are barred from seeking asylum in the U.S. Individuals who are barred from asylum may be eligible for Withholding of Removal (WOR) or Protection Under the Convention Against Torture (CAT). A lawyer can help determine if you are barred from asylum, and whether you are eligible for WOR or CAT relief.

 

I have a criminal conviction(s). Can I still apply for asylum?
Possibly. It depends on the nature of the crime committed. Most minor criminal convictions here in the U.S. (for which the sentence is less than five years), or non-serious criminal conduct in one's home country, does not usually bar an individual from applying for asylum. A lawyer is the best person to help you determine how your criminal history will impact your eligibility for asylum.

 

When should I submit my asylum application?
Asylum applications must be filed within one year of the date you last entered the U.S. Some exceptions, on a case-by-case basis, are permitted. However, do not count on being granted an exception. If the one-year deadline is approaching, a lawyer can help you file a "timely" I-589 with basic information (called a "skeletal" I-589), and then help you supplement your original filing with additional supporting documents at a later date.

 

I missed the one-year deadline for filing for asylum. Do I have any options?
You may still be eligible to file for asylum, especially if the one-year deadline passed recently. For example, some exceptions to the one-year deadline include materially "changed circumstances" or "extraordinary circumstances" that prevented timely filing, such as a hospitalization for a serious illness. A lawyer can help you determine if there is an exception that might allow you to file for asylum after the one-year deadline has passed, and can help you craft a strong argument to support why an exception should apply to your case.

 

What's the difference between an "affirmative" and a "defensive" asylum case? An "affirmative" asylum application is one that's filed when the applicant is not in removal (deportation) proceedings. However, if you file for asylum and your claim is denied, you can be placed in removal proceedings as a result. A "defensive" asylum application is one that's filed when someone is in removal proceedings. Being in removal proceedings means the U.S. government is trying to remove, or "deport" you, and send you back to your home country. Asylum may be one form of relief (or defense) against removal. "Defensive" asylum cases are more difficult to win than affirmative asylum cases because the applicant has a higher burden of proof. Regardless of whether your asylum application is affirmative or defensive, a competent lawyer is the best person to help you successfully file and win your asylum case.

 

Do I need a lawyer to file for asylum? How can a lawyer help me win my asylum case?
It is not necessary to hire a lawyer and you are free to represent yourself in your asylum case. However, it is strongly recommended that you hire a competent lawyer to help you apply for asylum. Hiring a competent lawyer to advocate for you can mean the difference between winning and losing your case. A lawyer can help spot potential issues in advance and deal with them proactively, rather than trying to deal with them defensively after your asylum claim has been denied. A lawyer can help you gather the evidence you need to support your case, present that evidence to the government in the most convincing way, and help you voice your story in a way that shows the government you meet the legal standard for a grant of asylum. If you cannot afford a lawyer and you live in Seattle or the surrounding areas, you can contact Northwest Immigrant Rights Project (NWIRP) at www.nwirp.org for help finding a pro bono or volunteer lawyer. The waitlist for pro bono lawyers is long and it can take many months to be placed, and not all people who apply for a pro bono lawyer are placed with one, so it is important to contact NWIRP as soon as possible.

 

I was forced to flee my home country without identity documents, a passport, or any other important papers, or I used fake travel documents to flee my country. Can I still file for asylum?
Yes. The government understands that people who are fleeing persecution may have had to leave quickly and unexpectedly because their lives were in danger and may not have been able to take any of their belongings with them, or it may have been too dangerous to try to obtain an official passport or other travel documents before fleeing. Therefore, the U.S. government allows individuals to apply for asylum even without a passport or other identity documents. Using fake travel documents in order to flee persecution also does not bar you from applying for asylum. However, it is important to understand that your asylum application, your declaration, any statements you make during your asylum interview or in court, and any supporting documents or other evidence you submit in support of your case will be closely scrutinized by the government for any inconsistencies or other indications that you are not being truthful. With fewer documents to support your case and to prove your identity and nationality, it may be more difficult to prove your case and win a grant of asylum. If the judge or asylum officer finds that you are not credible, your asylum claim will be denied. If you do not have a passport or other identity documents, or if it is difficult to obtain other supporting evidence due to safety concerns or other logistical issues, you should strongly consider consulting a lawyer who can help you find alternative ways to support your case, prepare you for your asylum interview, or assist you in presenting your case in court.

 

Can I include my spouse or child(ren) on my asylum application? Yes, you can include your spouse and any child who is under the age of 21 and unmarried in your asylum application, as long as they are here in the United States. If your spouse and any eligible children are not here in the United States, and your request for asylum is granted, you can file a request to have your spouse and children join you here in the United States. If your asylum claim is denied, and you have included your spouse and children on your asylum application, they will likely be put into removal (deportation) proceedings with you. Children can also file for asylum independently of their parents. You should talk to a lawyer about, if, when, and how to include your children and/or spouse on your asylum application, or for help filing the request to have your spouse and children join you in the U.S.

 

I fear for the safety of my spouse and/or children, is there any way to get my asylum interview scheduled more quickly? Possibly. You can try contacting your local asylum office by phone or email to inform them of your fears and request an "expedited" interview. If you are in removal proceedings, you can request that the immigration judge schedule your hearing more quickly. It is important to make sure that you are fully prepared for your asylum interview or to present your case in court, and that you have obtained the supporting documentation needed to support your case before making an expedited hearing or interview request. A lawyer can help you decide if and when to make an expedited interview request, and can assist you with making your request.

 

How long will it take for my asylum case to be decided?
It's very difficult to predict how long your case will take. It can take many months, even years before your asylum case is decided. In the case of affirmative asylum applications, sometimes USCIS randomly selects cases to be decided within a few months, while other people have been waiting more than two years for their asylum interview. If you are in removal proceedings, the immigration judge determines the hearing schedule. If your asylum claim is denied by the asylum officer and also by an immigration judge, and you wish to appeal this decision, the appeals process can also take many months, or even years.

 

Can I work while my asylum application is pending?
If your asylum application is pending more than 180 days (about six months) and the delay was not caused by you, and no decision has been made about your application yet, then you are permitted to work in the U.S. Usually, a request for work authorization (work permit) is filed once your asylum application has been pending for 150 days. A lawyer can help you determine when to file a work authorization request, and can help you make your request.

 

What happens after my asylum claim is granted or approved? Does being granted asylum mean I can get a green card and that I will be able to become a U.S. Citizen?
Immediately upon being granted asylum, you are permitted to permanently live and work in the U.S., but you will not yet be a legal permanent resident (LPR) with a "green card." Applying to become an LPR with a green card is often called adjustment of status (if the applicant is already in the U.S.). To be eligible for a green card, you must be admissible and meet certain other criteria, such as being present in the U.S for one year after asylum was granted. If you meet the eligibility requirements, you can apply to become an LPR and receive a "green card" one year after you have been granted asylum. Usually, you must be an LPR for 5 years in order to be eligible to "naturalize" (become a U.S. Citizen), and you must also meet all of the eligibility requirements, such as being a person of "good moral character." Making false statements or lying on your naturalization application can have serious consequences, and can even get you deported. A lawyer can help you determine if you are eligible to naturalize, help you spot and deal with any issues in your case that may trigger a denial, and help you avoid any unintended possible negative consequences. It is strongly recommended that you consult a lawyer prior to applying for adjustment of status or starting the naturalization process.

 

Can I travel after I have been granted asylum?
Asylees who are LPRs can obtain a refugee travel document for travel outside the U.S.; however, an asylee who travels to the country from which he or she fled persecution risks having their asylum status revoked. If you plan to travel outside the U.S., you should consult a lawyer about your travel plans and any possible consequences for travel abroad to ensure that you will be permitted to return to the U.S.

 

What happens if my asylum claim is denied?
If you are not in removal proceedings, and your asylum application is denied by the asylum officer who interviewed you, your case will be referred to the Immigration Court, and you will be placed in removal proceedings. Your asylum claim then becomes defensive, and you must present your claim for asylum in front of the immigration judge. If the immigration judge denies your claim for asylum, you can appeal this decision to the Board of Immigration Appeals (BIA). If the BIA agrees with the immigration judge and also denies your claim for asylum, you can file an appeal with the U.S. Court of Appeals who has jurisdiction to hear your case. If the U.S. Court of Appeals denies your asylum claim, the last option is appealing to the U.S. Supreme Court, which may or may not agree to hear your case. Appealing cases to the BIA, the U.S. Court of Appeals, or even the Supreme Court, is difficult, complex, and time-consuming, so hiring a competent lawyer to handle your appeal greatly increases your chance for success and ultimately being granted asylum in the U.S.

 

Still have questions? Call (206) 607-7976 to schedule a free 15-minute phone consultation with immigration attorney Minda A. Thorward. Full in-person, initial consultations at my office are $150.

 

Important Disclaimer: The information provided in the FAQ section is intended to be general in nature and is not intended to be construed as legal advice for any particular person or case, nor does the provision of this information create an attorney-client relationship between any website visitor and attorney Minda Thorward/Thorward Immigration Law, PLLC. Each case and each person's circumstances are different, and immigration law is complex and changes in the law occur frequently, which may not be reflected on this website or in the FAQ section in real time. The best way to get accurate and complete answers for questions related to your immigration case or status is to call me and schedule a consultation.

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