Asylum in the United States protects people fleeing persecution in their home country. For many, it is the only path to safety and stability when returning home would mean danger or persecution. Because of their large immigrant populations and strong legal aid systems, many asylum seekers travel to California and New York.
Still, the process can feel overwhelming. What should applicants expect, and how does someone apply for asylum in the U.S.? This guide covers eligibility, procedures, and common challenges to help you or a loved one understand the asylum system.
In this blog, we'll explore:
What Is Asylum?
Asylum is a form of protection under U.S. immigration law. If granted, asylum allows a person to:
- Stay in the U.S. without fear of deportation.
- Live and work legally.
- Apply for permanent residency and, eventually, citizenship.
- Sponsor their spouse and unmarried children under 21 to join them.
For those who cannot return to their home country due to persecution, asylum provides a crucial legal defense.
How Does the Asylum Process Work in the U.S.?
For those who are persecuted and prevented from returning to their country of origin, asylum offers a form of legal protection. Once granted asylum, individuals cannot be deported and can instead seek U.S. citizenship and permanent residency.
Legal Basis for Asylum
The U.S. asylum system is based on international human rights law, including the 1951 Refugee Convention, the 1967 Protocol, and the Refugee Act of 1980. These laws were incorporated into American immigration policy and are administered by the Department of Homeland Security (DHS).
Asylum seekers must show they fear persecution based on race, religion, nationality, political opinion, or persecution in a particular social group to qualify.
This final ground of persecution in a particular social group is especially complex and often requires detailed legal arguments to establish membership and risk. Claims involving persecution in a particular social group may apply to survivors of domestic violence, LGBTQ+ individuals, people targeted because of family ties, or members of specific ethnic or tribal communities. Due to its complexity, applicants often require legal representation to explain why their case qualifies under this protected category.
How Does the Asylum Process Work? Recognizing the Two Kinds of Applications
There are two main ways to apply for asylum in the U.S.:
Affirmative Asylum Procedures
Those not under removal procedures can apply actively through U.S. Citizenship and Immigration Services (USCIS) using the positive asylum process.
Steps in the Affirmative Asylum Process
- File Form I-589 : Must be submitted within one year of arrival in the U.S.
- Biometrics Appointment: Applicants provide fingerprints and undergo background checks.
- Asylum Interview: Conducted by a USCIS officer to assess eligibility.
Decision: Asylum is awarded, should it be authorized. Should the denial and the applicant lack legal status, the matter is forwarded to an immigration court for asylum defense.
Defensive Asylum Process
Defensive asylum is a legal defense against deportation before an immigration judge for individuals who are already under removal proceedings.
If someone is already in removal proceedings, they may request asylum as a defense against deportation. This often involves the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE), which are responsible for prosecuting removal cases.
Steps in the Defensive Process:
- Master Calendar Hearing: the immigration judge schedules deadlines.
- File Form I-589 with the court.
- Individual Hearing: the applicant presents their case.
- Decision: asylum granted or denied. If denied, an appeal may be filed with the Board of Immigration Appeals.
Eligibility Requirements for Asylum
To qualify for asylum, applicants must meet the following legal criteria:
Well-Founded Fear of Persecution
The applicant must show they experienced past persecution or, should they be repatriated to their own nation, have a reasonable well-founded fear of future persecution in their home country.
Persecution Based on a Ground Protected
Candidates have to show that their persecution relates to:
- Race
- Religion
- Nationality
- Political View
- Partition in a specific social group
- Timely Filing of Application
- Applicants must file Form I-589 within one year of entering the U.S.
No Bars to Asylum
A petitioner may be disqualified if they:
- Have harmed others
- Committed serious crimes
- Pose a security threat to the United States
- Were previously denied asylum
Where to File an Asylum Application
The correct application process depends on whether the asylum seeker is in removal proceedings.
Affirmative Asylum: File Form I-589 with USCIS and attend biometrics and an asylum interview.
Whether the asylum seeker is under removal processes determines the proper application procedure.
- File Form I-589 with USCIS, then show up for an asylum interview and biometrics.
- File Form I-589 with the immigration court managing the removal case in defensive Asylum.
Problems in the Asylum Procedure
Knowing the workings of the asylum process is crucial since applicants encounter several difficulties, including:
High Burden of Proof
Applicants must provide strong evidence to prove their persecution claim, including:
- Personal testimony
- Supporting documents (news articles, medical reports)
- Expert witness statements
- Long Processing Times
Due to immigration court backlogs, asylum cases can take several years to resolve.
Emotional Toll
Retelling traumatic experiences in asylum interviews can be stressful, leading to PTSD, anxiety, or depression.
Risk of Denial & Deportation
A denied asylum application may result in deportation. Appeals are possible but require strong legal representation.
Variability in Case Outcomes
The outcome of an asylum case can depend on factors such as the jurisdiction where the case is heard, the judge assigned, and the quality of legal representation.
Safe Third Country Agreements
Some asylum seekers face additional hurdles due to agreements between the U.S. and other countries.
Credible Fear Interviews
For individuals seeking asylum at the border, U.S. immigration officials conduct credible fear interviews to determine whether they have a valid claim.
Detention and Limited Access to Legal Counsel
Many asylum seekers are detained in immigration facilities while awaiting a decision on their case. Being in detention makes it difficult to gather evidence, contact witnesses, and obtain legal representation.
Impact of Changing Immigration Policies
U.S. asylum policies frequently change due to executive orders, court rulings, and shifts in political leadership.
Agencies Involved in the Asylum Process
Several U.S. government agencies play a role in the asylum process:
- U.S. Citizenship and Immigration Services (USCIS): Handles affirmative asylum applications.
- Department of Homeland Security (DHS): Oversees immigration enforcement.
- Immigration and Customs Enforcement (ICE): Manages detention and removal of immigrants.
Customs and Border Protection (CBP): Conducts border screenings, including credible fear interviews for asylum seekers arriving at U.S. ports of entry.
Steps to Strengthen an Asylum Claim
Despite these challenges, knowing how does the asylum process work can help applicants improve their chances of a successful claim:
- Gather Strong Documentation: Providing medical records, police reports, affidavits, and other supporting evidence can strengthen an asylum application.
- Seek Legal Assistance: An experienced asylum attorney can help applicants navigate the complex legal process.
- Prepare for the Interview: Asylum applicants should be ready to provide detailed, consistent, and truthful testimony.
Stay Informed on Policy Changes: Because immigration policies frequently change, staying updated on legal developments can help applicants make informed decisions.
Frequently Asked Questions (FAQ)
How Long Does the Asylum Process Take?
Processing times vary:
- Affirmative asylum cases take months to years.
- Defensive asylum cases often take longer due to immigration court delays.
Can I Work While My Asylum Case Is Pending?
Yes. Asylum seekers may apply for work authorization after 150 days if their case is still pending.
What Happens If My Asylum Case Is Denied?
- If denied by USCIS, the case is referred to immigration court.
- If denied by an immigration judge, applicants may appeal to the Board of Immigration Appeals (BIA).
Can My Family Join Me If I Am Granted Asylum?
Yes. Once granted asylum, individuals can apply for family reunification for their spouse and children.
Conclusion
Understanding the U.S. asylum process, whether affirmative or defensive, is essential for anyone seeking protection from persecution in their home country. Because DHS, USCIS, ICE, and CBP are all involved in the process, navigating the system can be difficult without help.
An experienced asylum attorney can help increase approval chances by gathering necessary evidence, preparing for interviews, and representing clients in court.
At Aftalion Law Group, we guide asylum seekers through every step, from applying with USCIS to defending cases in immigration court. Our experienced attorneys help clients build strong claims based on race, religion, nationality, political opinion, or persecution in a particular social group. Whether your claim involves domestic violence, LGBTQ+ identity, or another form of persecution in a particular social group, our team has the expertise to present your case effectively and persuasively.
📞 Contact Aftalion Law Group for a FREE Case Evaluation Today!
READ MORE ON OUR BLOGS
