Getting a green card if you face danger in your home country
Asylum
Getting a green card if you face danger in your home country
What is Asylum & Who Qualifies?
Asylum is a form of protection from the U.S. government. It protects individuals who are fleeing their home country, which has failed or is unwilling to protect them, from persecution on account of a statutorily-protected ground, such as race, religion, nationality, membership in a particular social group, or political opinion.
Often people refer to as “political asylum,” even though there are several forms of non-political protection.
Anyone fearing persecution may apply for asylum irrespective of legal status or whether you are in the United States unlawfully. To qualify for asylum, you must meet the definition of “refugee,” which requires establishing that you are:
(1) unable or unwilling to return to his or her home country
(2) because of either past persecution or a well-founded fear of persecution
(3) on account of race, religion, nationality, political opinion, or membership in a particular social group.
What is the process for applying for asylum?
Generally, you must submit the asylum application within one year of arriving in the United States. However, you can file after the 1-year deadline if you can prove changed circumstances that materially affected your eligibility for asylum or extraordinary circumstances directly related to your failure to file within one year. Further, there are two ways of applying for asylum:
(1) through an affirmative application with the USCIS; or
(2) filing a defensive application in removal proceedings.
Both types of processes utilize the same form – Form I-589, Application for Asylum and for Withholding of Removal. Further, an asylum applicant does not pay filing or fingerprinting fees.
1) File Form I-589, Application for Asylum and for Withholding of Removal, with USCIS.
2) Receipt Notice: confirms that USCIS received your application. Further, a receipt number is assigned which allows you to track your case status online at: https://egov.uscis.gov/casestatus/landing.do.
3) Biometrics Notice: USCIS schedules an appointment to take your fingerprints. If your spouse and/or children are included in your application, then they must also attend the fingerprint appointment.
4) Interview Notice, the Interview, and Officer Determination: you will receive an interview notice that schedules an interview with a USCIS officer. You may bring an attorney or BIA accredited representative, any witnesses to testify on your behalf, an interpreter (if needed), and your spouse and any children seeking derivative asylum benefits. During the interview, the officer will determine whether you qualify for asylum. The interview generally lasts an hour but may vary depending on the case. In most cases, you will return to the asylum office to pick up the decision within two weeks. The USCIS will mail your decision if longer processing times result.
1) Issuance of Notice to Appear (NTA): initiation of removal proceedings against you in immigration court; filing a defensive application for asylum occurs when you request asylum as a defense from removal.
2) Master Calendar Hearings: among resolving other issues, the immigration judge hears the basis for your asylum claim and schedules deadlines to submit evidence in support of your asylum claim. Also, your individual hearing is scheduled. Currently, due to the number of people in removal proceedings, individual hearings are being scheduled three years in advance. During this time, however, you may qualify for employment authorization.
3) Individual Hearing: you or your attorney present your asylum claim, witnesses may testify on your behalf, and the immigration judge will either order asylum to be granted or denied. If no other forms of immigration relief are available, then you will be ordered removed from the U.S.
Frequently Asked Question About Applying For Asylum
Can I be deported if I apply for asylum?
While your asylum application is pending, you cannot be deported because you are afforded certain constitutional and statutory rights, such as the right to due process – an opportunity to defend your case in a full and fair hearing before the government can deport you. If you are granted asylum, you cannot be deported. You may eventually apply to become an LPR after being granted asylum. However, if your asylum claim is denied by USCIS, your case will be referred to an Immigration Judge. You’ll get a second shot to present your case to the Immigration Judge. If you lose before the Immigration Judge, you can appeal your case. If you’re denied, you may end up with a final order of removal.
Is there an interview?
If you apply affirmatively for asylum (before USCIS), you’ll have an interview at a designated asylum office. For applicants in Texas, your interview will take place in Houston.
The USCIS officer adjudicating your application will determine whether you qualify for asylum at the interview. If you filed a defensive asylum application, before an immigration court, there is no interview because an immigration judge will determine your eligibility at a court hearing.
How do I know if I have a good asylum case?
Immigration law concerning asylum is very complex. Not having lawyer in general makes it exponentially more likely that your asylum case will be denied. Therefore, it is strongly advised that you hire an experienced immigration lawyer, who will identify the basis of your asylum claim (whether you suffered persecution, or have a well-founded fear of future persecution, on account of your race, religion, nationality, membership in a particular social group, or political opinion) and ensure the evidence provided supports your claim.
Can I get a green card if I win asylum?
Yes, you and any eligible spouse or child included in your asylum application may eventually become lawful permanent residents within 1-year after you are granted asylum.
What happens if I lose my asylum case?
If you lose your asylum case, there are several outcomes depending on whether you filed an affirmative or defensive application. With an affirmative application, you have “two bites at the apple”. This means that a denied affirmative application will be referred to immigration court and you will have another opportunity to apply for asylum. This is important because, in most instances, the USCIS officer that denied your application is not a lawyer (i.e, the adjudicating officer is not viewing your asylum claim through the same legal lenses that a lawyer would). On the other hand, the immigration judge is a lawyer with legal expertise.
If you asylum claim is ultimately denied, you still have other forms of immigration relief available. For example, your initial asylum application, whether affirmative or defensive is also considered an application for “withholding or removal” under the Immigration & Nationality Act (INA). To qualify for withholding of removal, you must establish that it is more likely than not that you life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion in the proposed country of removal.
If granted such relief, you cannot be removed to the country where your life or freedom would be threatened. This means that you may be removed to a third country ywhere your life or freedom would not be threatened. Further, you will not be able to apply for LPR status in the U.S. Both a UCIS officials and an immigration judge may grant withholding of removal.
If you lose both your asylum and withholding of removal claim in removal proceedings, you may still qualify for immigration relief under the United Nations Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, as implemented in U.S. law. This form of relief is also included within your initial asylum application. To be granted “deferral of removal” under the Convention Against Torture (CAT), you must present evidence that it it more likely than not that you would be tortured in your home country. Deferral of removal, however, does not confer any legal status in the U.S and does not necessarily result in release from detention. Further, it is effective only until terminated, which may result if, after review, the government determines that it is no longer more likely than not that you would be tortured in the country to which your removal is deferred or if you request that your deferral be terminated.
Furthermore, only and immigration judge (or Board of Immigration Appeals) can determine whether CAT prohibits your removal a country where you fear torture. In other words, a USCIS oficial does not have the power to decide whether or not you qualify for this type of immigration relief. At your last and final hearing (the “individual hearing”), the immigration judge will either grant or deny asylum, withholding of removal, or deferral of removal under CAT.
