Written by attorney Carl Michael Shusterman

Applying for Asylum

You may be eligible for asylum in the US if you have been persecuted or have a “well-founded fear of persecution” in your country based on (1) political opinion, (2) religion, (3) race, (4) nationality, or (5) membership in a particular social group.

Use Form I-589 to apply for asylum. Attach a detailed affidavit and documentation in support of your application. There is no filing fee.

If you are outside the US, you may apply for refugee status based on these same criteria. Your fear of persecution must be either by the government of your country or by a group that the government is unable or unwilling to control.

If you are able to establish past persecution, a presumption arises that you have established a well-founded fear of persecution. The burden of proof shifts to the government to demonstrate that circumstances have changed and that you no longer have a well-founded fear of persecution or that you could avoid persecution by relocating in another part of your country and that it would be reasonable for you to do so.

If you are in lawful immigration status, you can submit an application for asylum directly with the appropriate USCIS Service Center. Should your application be denied, you will remain in lawful status.

However, if you are not in lawful status, should your application not be approved by the USCIS, you will be placed in removal proceedings. If you are in removal proceedings before an Immigration Judge, in addition to applying for asylum, you may be eligible to apply for withholding of removal and for relief under the Convention Against Torture (CAT).

If the government can demonstrate that you have firmly resettled in a 3rd country, you are ineligible for asylum, withholding of removal and CAT. Generally, you must apply for asylum within one year after arriving in the US. However, there are various exceptions to this rule.

Once your asylum application has been pending for over 150 days, you may apply for a work permit using form I-765. If you are granted asylum, and your spouse and/or children are outside the US, use form I-730 to bring them to the US as asylees. One year after you are granted asylum, you may apply for a green card.

Asylum-seekers must apply for asylum within 1 year from the date of last arrival in the United States. If an applicant seeks asylum more than 1 year after arrival, an applicant must show either changed circumstances that materially affect the applicant’s eligibility or extraordinary circumstances that delayed filing an application. An applicant must also show that the application was filed within a reasonable amount of time given those circumstances.

Persons who are not in removal proceedings can apply for asylum with the USCIS. This is called an “affirmative" asylum claim.

Persons who are in removal proceedings can apply for asylum in Immigration Court. This is called a “defensive" asylum claim. If the Immigration Judge denies your application for asylum, you may appeal the decision to the Board of Immigration Appeals (BIA). If the BIA denies your asylum application, you may appeal to the US Court of Appeals in your area.

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