Qualifying for Asylum in the USA: A Step-by-Step Guide

Qualifying for Asylum in the USA: A Step-by-Step Guide
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Seeking asylum in the USA provides a legal pathway for those facing persecution or harm in their home countries. The U.S. asylum system allows individuals to apply for protection and remain in the country without fear of being deported to a place where they face persecution based on their race, religion, nationality, political opinion, or membership in a particular social group.

To qualify for asylum, applicants must meet specific eligibility requirements, such as demonstrating a well-founded fear of persecution or past experiences of persecution. To seek asylum, you need to submit the correct application within one year. You also need to attend interviews and provide evidence to support your claim.

The Asylum Application Process

Affirmative vs Defensive Asylum Application Processes

There are two primary paths to apply for asylum in the United States: the affirmative asylum process and the defensive asylum process.

The affirmative asylum process is for individuals who are not in removal proceedings. They can apply for asylum affirmatively by filing Form I-589, Application for Asylum and for Withholding of Removal, with U.S. Citizenship and Immigration Services (USCIS). This application must be filed within one year of the individual’s last arrival in the United States, unless they can demonstrate changed circumstances or extraordinary reasons for the delay.

On the other hand, the defensive asylum process is for individuals already in removal proceedings before an immigration judge at the Executive Office for Immigration Review (EOIR). They request asylum as a defense against removal from the U.S. by filing Form I-589 with the immigration court.

Asylum Processing Rule and Expedited Removal Process

The Asylum Processing Rule began in 2022. It aims to simplify the asylum process for individuals who are swiftly deported but can demonstrate they face persecution or torture. The rule is intended to assist those who are in danger of harm in their home countries. It provides a streamlined process for asylum seekers to present their case and receive protection. Previously, these cases were exclusively decided by immigration judges, often taking several years due to backlogs.

Under the new rule, individuals placed in expedited removal proceedings who express fear of return are referred to USCIS for a credible fear screening interview. If found to have a credible fear, USCIS may either:

  1. Retain and consider the asylum application through an Asylum Merits Interview (AMI), where an asylum officer decides eligibility for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).
  2. Issue a Notice to Appear before an immigration judge for consideration of the asylum claim, placing the individual in the defensive asylum process.

Filing Form I-589 and Required Documents

To apply for asylum in the USA and withholding of removal, applicants must submit the following documents to USCIS or EOIR, depending on their process:

  1. The completed and signed original Form I-589, along with any supplementary sheets and statements.
  2. One copy of evidence of relationship (e.g., birth certificates, marriage certificates) for each family member included in the application.
  3. One copy of all passports, travel documents, and U.S. immigration documents (e.g., Form I-94) for the applicant and family members.
  4. One copy of other identification documents (e.g., birth certificates, national ID cards, driver’s licenses).

Applicants must also provide reasonably available corroborative evidence, such as news articles, affidavits, medical records, or expert statements, to support their asylum claim and demonstrate the general conditions in their country of origin.

Eligibility Requirements and Bars

Persecution based on race, religion, nationality, social group, or political opinion

To be eligible for asylum in the United States, an applicant must meet the definition of a refugee as outlined in the Immigration and Nationality Act (INA). This stipulation necessitates that the candidate is incapable or disinclined to go back to their homeland because of a substantiated dread of persecution based on their ethnicity, faith, nationality, affiliation with a specific social group, or political viewpoint.

The applicant bears the burden of proof in establishing their eligibility for asylum by testifying under oath and providing corroborative evidence, such as documents or witness statements, to support their claim of persecution. Persecution is generally defined as the infliction of harm or suffering on individuals who differ in a way regarded as offensive. It can involve serious physical harm, coercive medical or psychological treatment, disproportionate punishment, severe discrimination, economic persecution, or extortion.

For asylum claims based on sexual orientation, gender identity, or HIV status, the applicant must demonstrate a well-founded fear of persecution due to their membership in a particular social group. Since 1994, “homosexual men” has been recognized as a particular social group under asylum law, and more recently, the Ninth Circuit has ruled that “all alien homosexuals” constitute a particular social group.

The applicant must provide evidence that the persecution they fear is motivated by their actual or imputed membership in a particular social group, and that the persecutor is either a government actor or a non-governmental entity that the government is unable or unwilling to control.

One-year filing deadline and exceptions

Asylum applicants in the United States are generally required to file their application within one year of their last entry into the country. This one-year filing deadline can be exempted if the applicant demonstrates the existence of either changed circumstances that materially affect their eligibility for asylum or extraordinary circumstances directly related to the delay in filing.

Changed circumstances may include changes in the conditions of the applicant’s home country, changes in U.S. laws affecting their eligibility, or changes in the applicant’s activities that place them at greater risk of persecution. Examples of extraordinary circumstances include serious illness, mental or physical disability, legal disability (such as being an unaccompanied minor or having a mental impairment), ineffective assistance of counsel, or maintaining a protected status until a reasonable period before filing.

If an exception applies, the applicant must still file their asylum application within a reasonable period of time after the changed or extraordinary circumstances occur. The determination of what constitutes a reasonable period is made on a case-by-case basis, considering factors such as the applicant’s education, the effects of illness, and when the applicant became aware of the changed circumstances.

Criminal convictions and security risks as bars to asylum

Asylum applicants with criminal convictions or security risks may face bars to being granted asylum, depending on the nature and severity of the offense. Applicants must disclose any criminal history on their Form I-589 and during their asylum interview, as failure to do so may result in fines or imprisonment for perjury.

The Immigration and Nationality Act (INA) categorizes crimes into two main categories for immigration purposes: crimes of moral turpitude and aggravated felonies. Crimes of moral turpitude refer to acts contrary to justice, honesty, or good morals, such as fraud or depravity. Aggravated felonies involve serious crimes like murder, rape, drug offenses, or violent crimes punishable by at least one year of imprisonment.

While immigrant waivers are available for most crimes, no waiver is permitted for murder, torture, or drug trafficking offenses. Individuals convicted of certain crimes may be subject to deportation, and a 212(h) waiver can provide a defense against deportation if specific criteria are met, such as demonstrating rehabilitation and that admission would not be contrary to national welfare or security.

It is crucial for asylum applicants to disclose any criminal history truthfully, as lying on a visa or green card application can permanently jeopardize their ability to enter or live in the United States.

Asylum in the USA: Eligibility Requirements and Bars

After Applying for Asylum in the USA

Background Checks and Security Clearances

Rigorous background checks and security clearances are an integral part of the asylum process in the United States. These measures aim to ensure that individuals granted asylum do not pose a security threat to the country. The screening process involves various biometric and biographic checks initiated by multiple government agencies.

Before USCIS approves an asylum application, any information returned from an applicant’s interagency checks must be addressed and cleared. If new information is identified at any stage, USCIS may request additional checks as appropriate.

The screening process includes the following biometric checks:

  1. FBI Screening: The applicant’s fingerprints are run through the FBI’s Next Generation Identification System.
  2. DHS Screening: The applicant’s fingerprints are screened against the U.S. Department of Homeland Security’s Automated Biometric Identification System, which includes watch-list information and data on previous immigration encounters.
  3. DOD Screening: The U.S. Department of Defense screens fingerprints of asylum applicants within a certain age range against its Automated Biometric Identification System, which contains various data, including fingerprint records from Iraq.

Additionally, the screening process involves numerous biographic checks initiated by Resettlement Support Centers (RSCs) and reviewed by U.S. government agencies. These checks include verifying the applicant’s identity, background, and claimed reasons for asylum.

If there is any doubt about whether an applicant poses a security threat, they will not be admitted to the United States. The screening process typically takes 18 to 24 months after referral.

Asylum Interview and Decision Timeline

After filing the asylum application, applicants will be scheduled for an interview with an asylum officer at a USCIS asylum office or a circuit ride location, often a USCIS field office. The interview notice will provide the date, location, and time of the asylum interview.

Applicants may bring an attorney or accredited representative to the interview, as well as their spouse and any children seeking derivative asylum benefits. If the applicant cannot proceed with the interview in English, they must bring an interpreter.

The asylum interview generally lasts about one hour, although the duration may vary depending on the case. Applicants may also bring witnesses to testify on their behalf.

After the interview, the decision timeline can vary based on several factors, such as the applicant’s current immigration status, pending security checks, or the need for further review by asylum division staff at USCIS headquarters. In these situations, the decision will typically be mailed to the applicant.

Employment Authorization and Travel Documents

If granted asylum in the USA, individuals are authorized to work in the United States as part of their asylee status. An Employment Authorization Document (EAD) will be issued after the Asylum Office, an immigration judge, or the Board of Immigration Appeals grants asylum.

Asylees can also apply for a Social Security card with their asylum approval notice or Form I-94 issued by USCIS, along with an official government-issued identification document containing a photo, such as an unexpired foreign passport or driver’s license.

Once an asylee has obtained their Social Security card, they can use it to prove their eligibility for employment to potential employers.

If USCIS grants asylum, the Asylum Office will handle the EAD application automatically. The asylee does not have to apply separately for work authorization. However, if asylum is granted by an immigration judge or the Board of Immigration Appeals, the asylee will receive instructions on how to obtain an EAD from USCIS, either through an in-person appointment or by mail.

Asylees may also apply for a Refugee Travel Document by filing Form I-131, Application for Travel Document, with USCIS. This document serves as a substitute for a passport and allows asylees to travel outside of and return to the United States.

Final thoughts

After carefully analyzing the additional instruction provided, I have determined that it is specifically intended for the conclusion section. The instructions say to end with a strong message. The message should encourage people to contact a lawyer. They can set up a free consultation at N400 Harbor Immigration Law. Therefore, I will incorporate this instruction seamlessly into the conclusion section of the article.

The asylum process in the United States is complex, and navigating the legal requirements can be challenging. It is crucial to seek professional guidance from experienced immigration attorneys to ensure that your application is properly prepared and that you meet all eligibility criteria. Failing to adhere to the regulations or providing incomplete or inaccurate information can jeopardize your chances of obtaining asylum.

By understanding the key steps, requirements, and potential obstacles outlined in this article, you can better prepare for the process of applying for Asylum in the USA. To increase your chances of success, schedule a free case evaluation with N400 Harbor Immigration Law. Their team of dedicated professionals will provide personalized legal advice and represent you throughout the complex asylum proceedings, maximizing your chances of obtaining protection and a new life in the United States.

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