Finding Safe Haven in the USA
Law Office of Darryl L. Wynn understands what is at risk when an individual is applying for asylum, and appreciates how afraid our clients are of returning to a place where they were persecuted.
We have uncommon success preparing asylum applications both affirmatively, as well as before an Immigration Judge, and our record speaks for itself. Although past successes do not guarantee future results we promise that we will do everything in our power to put you in the best possible position to win your asylum application.
Current asylum law requires that you must apply for asylum within one year of arriving in the United States, so it is very important to contact a competent Immigration Attorney and explain to them that you are afraid of being persecuted even if you are in the U.S. under some type of legal status.
Applications for asylum may be submitted both affirmatively with Citizenship and Immigration Services, and defensively before an Immigration Judge. In order to obtain political asylum in the United States you must prove that you are a refugee as defined in Section 101(a)(42) of the Immigration and Nationality Act.
You may qualify as a refugee either because you have suffered past persecution or because you have a well-founded fear of future persecution in your home country of nationality or last habitual residence because of your race, religion, nationality, membership in a particular social group, or political opinion, and that you are either unwilling or unable to return to the place that you fear persecution.
Have you been persecution at Home?
You may be considered a refugee under U.S. immigration law if it is established that you have harmed in your country of nationality or last habitual residence on account of your:
- Race;
- Religion;
- Nationality;
- Membership in a particular social group; or
- Because of your political opinion.
You must also be either unable or unwilling to return to or avail yourself of the protection of that country where you were persecuted.
Are you afraid to go Home?
An applicant who has not been harmed in the past may also be eligible for asylum in the United States if you are able to establish that you are have a well-founded fear of future persecution.
You must be able to establish that there is a reasonable possibility that you will suffer persecution if you were to return to the country where you fear persecution. on account of your:
- Race;
- Religion;
- Nationality;
- Membership in a particular social group; or
- Because of your political opinion
You must also be either unwilling, or unable to return to the country of where you fear persecution.
Please be aware that the granting of asylum in the United States is discretionary, and is not guaranteed merely by a showing of past persecution or a fear of future persecution.
If you fear persecution in your home country please contact our office to schedule a conference to speak to one of the partners of the firm.
Bars to Applying for Asylum
Am I Ineligibility to Apply for Asylum? An asylum-seeker is ineligible to apply for asylum under section 208(a)(2) of the INA if he or she:
1. Failed to file an asylum application (Form I-589) within one year of his or her last arrival in the United States or April 1, 1997, whichever is later - Exception to the I-Year Filing Deadline:
The applicant demonstrates either the existence of changed circumstances* which materially affect the applicant’s eligibility for asylum or extraordinary circumstances** relating to the delay in filing. The applicant needs to have filed the application within a reasonable time given the exception.
2. Previously applied for asylum and was denied by an Immigration Judge or the Board of Immigration Appeals
- Exception to Previous Denials of Asylum:
The applicant establishes the existence of changed circumstances* which materially affect his or her eligibility for asylum.
3. Can be removed to a safe third country pursuant to a bilateral or multilateral agreement
- USCIS published regulations implementing a bilateral agreement between the United States an Canada on November 29, 2004.
- Unless asylum-seekers arriving at a U.S./Canada land border port of entry or transiting through the United States while being removed from Canada fall within an exception to the agreement, they will be returned to Canada to seek protection there.
*Changed Circumstances:
These may include but are not limited to the following:
- Changes in conditions in the applicant’s country of nationality or, if the applicant is stateless, country of last habitual residence;
- Changes in the applicant’s circumstances that materially affect the applicant’s eligibility for asylum, including changes in applicable U.S. law and activities the applicant becomes involved in outside the country of feared persecution that place the applicant at risk; or
- In the case of an alien who had previously been included as a dependent in another alien’s pending asylum application, the loss of the spousal or parent-child relationship to the principal applicant through marriage, divorce, death, or attainment of age 21.
**Extraordinary Circumstances:
These may include but are not limited to the following:
- Serious illness or mental or physical disability, including any effects of persecution or violent harm suffered in the past, during the 1-year period after arrival;
- Legal disability (e.g., the applicant was an unaccompanied minor or suffered from a mental impairment) during the 1-year period after arrival;
- Ineffective assistance of counsel, provided that:
- the applicant files an affidavit setting forth in detail the agreement that was entered into with counsel with respect to the actions to be taken and what representations counsel did or did not make to the respondent in this regard;
- the counsel whose integrity or competence is being impugned has been informed of the allegations leveled against him or her and given an opportunity to respond; and
- the applicant indicates whether a complaint has been filed with appropriate disciplinary authorities with respect to any violation of counsel’s ethical or legal responsibilities, and if not, why not;
- The applicant maintained Temporary Protected Status, lawful immigrant or nonimmigrant status, or was given parole, until a reasonable period before the filing of the asylum application;
- The applicant filed an asylum application prior to the expiration of the 1-year deadline, but that application was rejected by the Service as not properly filed, was returned to the applicant for corrections, and was refiled within a reasonable period thereafter; or
- The death or serious illness or incapacity of the applicant’s legal representative or a member of the applicant’s immediate family.
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.
| Key Differences Between “Affirmative” and “Defensive” Asylum Process |
| Affirmative | Defensive |
| Asylum-seeker has not been placed in removal proceedings | Asylum-seeker has been placed in removal proceedings in Immigration Court |
| Asylum-seeker affirmatively submits his or her asylum application to a USCIS Service Center | Asylum-seeker: - Is referred by an Asylum Officer
- Is placed in removal proceedings for immigration violations, or
- Tried to enter the U.S. at a port-of-entry without proper documents and was found to have a credible fear of persecution or torture
|
| Asylum-seeker appears before a USCIS Asylum Officer | Asylum-seeker appears before an Immigration Judge with the Executive Office for Immigration Review |
| Non-adversarial interview | Adversarial court hearing |
U.S. “Affirmative” Asylum Processing with USCIS
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. “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.
For information on the process after being granted asylum before an Immigration Judge, see “Notice to Individuals Granted Immigration Benefits by Immigration Judge or Board of Immigration Appeals (BIA)”.
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 expresses a fear of return, the individual is detained and given an interview by an Asylum Officer. The role of the Asylum Officer is as an Asylum Pre-Screening Officer (APSO) who interviews the person to determine if he or she has a credible fear of persecution or torture. This is a standard that is broader -- and the burden of proof easier to meet -- than the well-founded fear of persecution standard needed to obtain asylum. Those found to have a “credible fear” are referred to an Immigration Judge to hear and then judge their asylum claims.
This places the asylum seeker on the “defensive” path to asylum. Most individuals who are found to have a credible fear of these are almost immediately released to relatives or community groups, or on their own recognizance.
However, some are not released, and instead are detained while their asylum claims are pending with the Immigration Judge.
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.
How do I apply for Asylum?
These are the general procedures for obtaining asylum through the affirmative asylum process. They do not apply to those asylum-seekers who are in removal proceedings before an Immigration Judge. The following is a basic outline of what steps an applicant must take to be granted asylum in the United States.
Step One: Asylum-Seeker Arrives in the United States
An asylum-seeker may apply for asylum while physically present in the United States or at a port of entry, regardless of the individual’s immigration status. See INA § 208(a).
Step Two: Asylum-Seeker Applies for Asylum
An asylum-seeker may apply for asylum with USCIS only if he or she is not in immigration proceedings before the Immigration Judge, which means he or she has not been placed in removal proceedings.
Asylum applications must be filed within one year after the individual’s arrival in the United States, unless the individual can demonstrate “changed circumstances” that materially affect eligibility for asylum or “extraordinary circumstances” relating to the delay in failing to apply for asylum within one year. The asylum-seeker must apply for asylum within a reasonable time given those circumstances. See INA § 208(a)(2) and 8 CFR § 208.4.
The one-year deadline is calculated from the date of the individual’s last arrival in the U.S. or April 1, 1997, whichever is later. See: Bars to Applying fro Political Asylum.
An asylum-seeker may be ineligible to apply for asylum if he or she previously applied for asylum and was denied asylum by the Immigration Judge or Board of Immigration Appeals (unless he or she can demonstrate the existence of changed circumstances which materially affect his or her eligibility for asylum).
An asylum-seeker may also be ineligible if he or she could be sent to a safe third country with which the United States has a bilateral or multilateral agreement. See INA § 208(a)(2) and Bars to Applying for Asylum.
To apply, an asylum-seeker will need to complete Form I-589, Application for Asylum and for Withholding of Removal, and must mail a completed application package to the Service Center that has jurisdiction over the individual’s place of residence. Once the Service Center has received the completed application, the Service Center will send the applicant a notice acknowledging receipt of the application.
An asylum-seeker may ask for derivative asylum status for his or her spouse and children who are physically present in the United States. The child must be under 21 years of age at the time the asylum-seeker files the application and unmarried. See What About My Spouse and Children?
Step Three: Applicant is Fingerprinted and Background Security Checks Conducted
USCIS will send a notice to any applicant between 14 and 79 years of age to go to an Application Support Center or authorized Designated Law Enforcement Agency to have his or her fingerprints taken. The fingerprints will be sent to the Federal Bureau of Investigation (FBI) for a background/security check. The FBI will send those results to USCIS.
A copy of the application will be sent to the U.S. Department of State for a background/security check.
The asylum-seeker’s biographical information will also be sent to the Federal Bureau of Investigation (FBI) and the Central Intelligence Agency (CIA) for a background check, and Immigration will check other law enforcement databases with the asylum-seeker’s biographical information.
Step Four: Applicant Receives Interview Notice
The applicant will then be scheduled for an interview with an Asylum Officer, either at one of the eight asylum offices, or at a district office, depending on the applicant’s residence.
Applicants who are scheduled to be interviewed at one of the eight asylum offices will generally receive the interview notice within 21 days after filing the application.
Applicants who are scheduled to be interviewed at a district office may receive their interview notices at a later date.
Asylum officers regularly travel to conduct asylum interviews in district offices in many locations throughout the country. To determine the jurisdictions of the eight asylum offices, see the details for each Asylum Office: Arlington, VA; Chicago, IL; Houston, TX; Los Angeles, CA; Miami, FL; Newark, NJ (Lyndhurst); New York, NY (Rosedale); and San Francisco, CA.
Step Five: Applicant is Interviewed by an Asylum Officer
An applicant has the right to bring an attorney or accredited representative to the interview. An applicant must bring any spouse and/or children who are included as dependents in the asylum decision.
An applicant who does not speak English fluently must bring an interpreter to the interview. The interpreter must be at least 18 years old and cannot be the applicant’s representative or attorney of record, a witness testifying on the applicant’s behalf, or an employee or representative of the applicant’s home country. See 8 CFR § 208.9(g).
The interview will generally last about an hour, although the time may vary depending on the case. The applicant will be asked to take an oath promising to tell the truth during the interview.
The Asylum Officer will:
- Verify the applicant’s identity and ask the applicant basic biographical questions;
- Ask the applicant about the reasons he or she is applying for asylum;
- Ask the applicant questions to determine if he or she meets the definition of a refugee; and
- Ask whether any bars apply to being granted asylum.
Regulations protect the confidentiality of the information the applicant provides to the Asylum Officer. See 8 CFR § 208.6.
The applicant and his or her attorney or representative will have time at the end of the interview to make a statement or add any additional information.
A decision will not be made at the asylum interview. See 8 CFR § 208.9.
Step Six: Asylum Officer Makes Determination on Eligibility and Supervisory Asylum Officer Reviews the Decision
An applicant must be a refugee in order to be eligible for asylum. The definition of a refugee is found in INA § 101(a)(42)(A) and requires that the applicant be:
- unable or unwilling to return to or avail himself or herself of the protection of the country of his or her nationality or, if stateless, the country where he or she last habitually resided
- because of persecution or a well-founded fear of persecution
- on account of race, religion, nationality, membership in a particular social group, or political opinion
Under INA § 101(a)(42)(B) an applicant who establishes past persecution or a well-founded fear of persecution on account of resistance to a coercive population control (CPC) program is considered to have established persecution on account of political opinion.
These include, but are not limited to:
- applicants who were forced to abort a pregnancy or undergo involuntary sterilization;
- or those who failed or refused to undergo these procedures.
The Asylum Officer will also determine whether any mandatory bars apply.
A Supervisory Asylum Officer will then review the decision. Certain cases, such as those involving possible persecutors, are referred to the Asylum Division Headquarters for review.
Step Seven: Applicant Receives Decision
In most cases, the applicant will be required to return to the asylum office two weeks after the interview to receive a decision on the application.
- If USCIS has decided that the applicant is eligible for asylum, the applicant will either be given a final approval letter depending on whether the asylum office has received the information from the FBI background/security check. Only once that information has been received and all other background security checks are complete can the Asylum Officer issue a final approval of the asylum application.
- If USCIS has decided that the applicant is not eligible for asylum, the applicant will either be referred to an Immigration Court or will receive a Notice of Intent to Deny asylum. This depends on whether the applicant appears to be in the United States illegally. If the applicant is not in lawful status in the United States, the asylum office will issue the applicant charging documents that place him or her in removal proceedings in Immigration Court. The asylum office will also refer the asylum application to the Immigration Court for an Immigration Judge to decide during the removal proceedings. The applicant will be given the date, time, and place of the hearing when the applicant returns to the asylum office to receive the asylum decision.
- If the applicant is in lawful status, the asylum office will not refer the asylum application to the Immigration Court. Instead, the asylum office will send the applicant a Notice of Intent to Deny explaining the reasons the applicant has been found ineligible for asylum. The applicant will be given 16 days to provide a response before the final decision is made. After reviewing the applicant’s response, if one is sent, the asylum office will either approve the asylum application (based on the response) or deny it (if the response does not overcome the reasons the applicant was found ineligible for asylum).
