Asylum is the legal protection granted to people who have come to the United States and are afraid to return to their home country. Asylum can be granted to people who are unable or unwilling to return to their home country 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.
Grounds for Asylum
There are many reasons why people come from other countries to the United States, including business opportunities, to be with family, and to study at American universities. However, there are times when people come to the U.S. out of fear of persecution in their country of origin. If you have fled your home country because of persecution or fear of persecution, you may be eligible for asylum.
Political asylum is protection by the United States for those who have faced persecution due to their:
- Religion
- Nationality
- Political opinion
- Membership in a particular social group
- Race
Procedure to Apply for Asylum
While manner of entry and current immigration status do not impede your ability to apply for asylum; to receive asylum, you are required to file a thorough application with the USCIS (the United States Citizenship and Immigration Services) demonstrating the validity of your fear of persecution in your country of origin within one year of entry into the United States. Exceptions to this one-year requirement exist. After filing your application, you will attend an interview at the asylum office with one of your experienced attorneys. Your children and spouse may be included in your asylum application.
Affirmative Asylum Overview
Asylum seekers residing lawfully in the United States or seeking lawful entry to the United States through a port of entry, can apply for asylum through the affirmative asylum process. The affirmative asylum process generally culminates in an interview conducted by an Asylum Officer, who will determine whether the applicant will be granted asylum. Exceptions to the interview requirement exist for certain alien crew members, stowaways, visa waiver program applicants, visa waiver overstays, status violators, witnesses, informants, and others who, instead of having an interview, must appear before an immigration judge for an asylum-only hearing.
The affirmative asylum process allows asylum seekers to remain in the United States while their asylum application is pending with CIS, or before an immigration judge if the I-589 application has been denied by CIS. Affirmative asylum applicants who are denied will be issued a Notice to Appear (NTA) before immigration court and their case will fall under the jurisdiction of the Executive Office for Immigration Review (EOIR) for a hearing before an immigration judge. In order words, applicants who are denied through affirmative asylum processing will be able to argue their case through defensive processing with the EOIR. Affirmative asylum applicants are generally not detained by the United States Immigration and Customs Enforcement (ICE).
Defensive Asylum Overview (EOIR)
Asylum seekers facing removal proceedings may apply for asylum and withholding of removal as a defense against deportation from the United States before an immigration judge with the Executive Office for Immigration Review (EOIR). In order to apply for defensive asylum, the applicant must be in removal proceedings. Undocumented victims of persecution who are apprehended by Customs and Border Protection or at a U.S. port of entry are placed in removal proceedings. An asylum officer will conduct a credible fear interview and determine whether the alien has been persecuted or maintains credible fear of harm based on at least one of the five statutorily protected grounds. If the alien has a legitimate fear of persecution they may apply for asylum before an immigration judge in court. An adverse decision made by an immigration judge can be appealed with the Board of Immigration Appeals (BIA).