Obtaining Asylum in the United States

Asylum law in the United States is very complex.  Asylum is an extraordinary form of relief and difficult to qualify for.  An applicant for asylum should, if possible, be assisted by an immigration attorney experienced in this specialized area.

An Asylee in the United States is allowed to stay indefinitely in the United States. There is a high burden of proof for asylum applicants.  They should submit a detailed affidavit explaining the reasons they require the protection of the United States.  These reasons must be on account of the applicant’s race, religion, nationality, political opinion,   and membership in a particular social group (which is a very broad category).  The applicant also needs to corroborate his or her claim with witness affidavits, medical evidence, and country conditions.

There are two ways of obtaining asylum in the United States – one is called affirmative and the other defensive.

Affirmative Asylum Application

Persons who are present in the United States may apply for asylum by submitting the I-589 asylum application “affirmatively” with USCIS.  The application should be filed within one year after the applicant’s arrival in the United States to qualify for this form of relief.  There are waivers available if there are changed circumstances such as a change in country conditions or extraordinary circumstances such as emotional disability or if the applicant was in legal status before filing even though more than one year has passed since the date of entry.  There are a number of such waivers available and the burden of proof is high to qualify for one.

In situations of both changed circumstances and extraordinary circumstances, the applicant must file the application within a “reasonable time” after, for example, the changed country conditions or falling out of status.

Affirmative applications for asylum are filed at the Service Center within the jurisdiction of the applicant’s residence.  There are eight asylum offices nationwide.  The asylum interview usually takes place within forty three days of the filing of the application and the decision is made fourteen days after the interview if the applicant is out of status and sometimes longer if the applicant is in status.

If the applicant is in valid immigration status the application will either be approved or denied.  If the applicant is not in valid immigration status and the application is denied a Notice to Appear is issued and the case is referred to an Immigration Court.  In this instance, the application has another opportunity to present his or her case.

Defensive Asylum Application

If the affirmative application is referred to the Immigration Court, it becomes a “Defensive” application because it is in defense of removal from the United States.  Persons who are in proceedings at Immigration Court and file their initial application there also file a “Defensive” application.  This happens when immigration learns an alien is out of status and files paperwork with the court to initiate removal proceedings and, for example, when aliens surrender at the border or are caught by immigration and ask for protection.

In this instance, the case is tried before an Immigration Judge. If the applicant is found not to be eligible for asylum, the Immigration Judge will determine whether the applicant is eligible for any other forms of relief such as Withholding of Removal, protection under the Convention Against Torture, and, if not, will order the individual removed from the United States.  The decision of the Immigration Judge can be appealed by either or the applicant or the DHS.