A form of defense against being removed (deported) from the United States or returning to a person’s country of origin or country of last residence because of fear of persecution, harm, or torture is Asylum.
In order to apply for asylum, the applicant must
- Be physically present in the United States (U.S.), regardless of visa status, and submit the I-589 application within one year of entry; however, there are exceptions to the one year filing requirement, like changed country conditions or extraordinary conditions that befell the applicant like serious physical or mental illness.
- Not have participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.
- Not have been convicted of a particular serious crime in the U.S.
- Not have committed a serious nonpolitical crime outside of the U.S.
- Not have firmly resettled in another country before arriving in the U.S.
- Not previously applied and been denied asylum by an Immigration Judge.
- Not be a threat to the security of the U.S.
In order for the USCIS to grant asylum, the applicant must establish
- That s/he is outside of her/his country of nationality or if s/he has no nationality, the country last habitually resided; and
- That s/he is unable or unwilling to return to that country; and
- That s/he is unable or unwilling to avail himself or herself of the protection of that country; and
- That s/he fears persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
- The form used that is submitted to the USCIS Asylum Office is the I-589, Application for Asylum and Withholding of Removal.
- The Asylum Office initially adjudicates the application.
- If the asylum application is denied, and if the applicant is still in immigration status with a valid visa, the person will have an opportunity to leave the country without any further immigration proceedings.
- If the asylum applicant is not in status any longer, the Asylum Office will issue a Notice to Appear (NTA), which places the asylum applicant in removal (deportation) proceedings and the applicant can apply for asylum in Immigration Court. The Immigration Judge will adjudicate the application.
- If the asylum applicant is detained by the Department of Homeland Security, the I-589 application is submitted to the Immigration Court and it will be adjudicated by an Immigration Judge.
What happens if the Immigration Judge grants Asylum?
If the asylum application is granted, the applicant will receive “Asylee” status for one year where s/he can apply for an Employment Authorization Document (EAD) in order to legally work in the United States or if unable to work, be eligible for public benefits like food stamps and welfare. After being an “Asylee” for one year, s/he submits an Adjustment of Status for lawful permanent residence if the following conditions apply:
- Continues to fear returning to their home country or country last habitually resided;
- Has not firmly resettled in any other foreign country; and
- Meets all the requirements of admissibility as a lawful permanent resident.
What happens if the Immigration Judge denies Asylum?
If the Immigration Judge denies asylum, the applicant will be either removed from the U.S. or if eligible, voluntarily depart the U.S. The Asylum applicant has due process rights to appeal her/his case first to the Board of Immigration Appeals (BIA) and if denied further on to the Federal appeals court where the Asylum case was heard.
Note: It is highly advisable that when applying for Asylum to consult an Immigration Attorney or if detained, to seek the assistance of an Immigration Attorney to represent you in Immigration Court.