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Asylum 101

Asylum Basics

One way to eventually obtain a green card and later to become a naturalized U.S. citizen is to apply for asylum. You can only apply for asylum when you are already in the U.S. or at the border/port of entry. If you are outside the U.S. and outside your home country, you can apply for refugee status—both refugees and asylees must meet the same standards but the process is different—this article only discusses the steps for an individual seeking to become an asylee. It discusses the general requirements and explains the process for someone applying for asylum who is not already in immigration removal proceedings. If you think you may have an asylum claim, you should consult with an immigration lawyer about your specific circumstances.

Qualifications To qualify for asylum, you must demonstrate:

(1) that you are unwilling or unable to return to your home country because of either:

(a) past persecution or

(b) a "well-founded fear" of future persecution in your home country; and,

(2) that the persecution you suffered or fear is based on your race, religion, nationality, political opinion or membership in a particular social group.

The persecution you experienced or fear must be caused by your government or by a group that your government is unwilling or unable to control. You will not qualify for asylum if you have assisted in persecution, have been convicted of a “particularly serious crime" (determined case by case, but may include minor crimes), have been involved in terrorist activity or can reasonably be seen as a threat to U.S. security, or have resettled in another country. It is much easier than you might think for the government to find an asylum applicant has “engaged in terrorist activity," which includes providing “material support" to a terrorist group. For example, “providing food and setting up tents" at a peaceful meeting for a dissident group has been found to be material support.

Timing If you are in the U.S., you may apply for asylum when:

(1) you are already in removal proceedings (defensively);

(2) when you are not in removal proceedings (affirmatively), even if you are out of status in the U.S., or;

(3) at the border/port of entry. This article will focus on the process for (2), an affirmative asylum application. An asylum seeker must file the asylum application within 1 year of his or her last arrival in the U.S. If you file the application after your 1-year anniversary of arriving, you will have to prove “extraordinary circumstances" that prevented you from filing within the one year deadline, or “changed circumstances" that affected your eligibility for asylum. Proving that you meet an exception to the 1-year deadline is not an easy task and becomes harder the longer it is past the deadline. If you are nearing the deadline and do not have time to properly prepare an application, it's usually best to file an application that only includes the minimum requirements (Form I-589 and identity documents) and then supplement it later with additional evidence, rather than risk filing late.

The Application

If you are not in removal proceedings and wish to apply for asylum, you must file a form I-589 with the U.S. Citizenship and Immigration Services. It is essential to read the form’s instructions carefully and include all of the required documents. Simply filling out the application is not sufficient. You should also submit a detailed declaration, either written by you or, hopefully, with the help of an immigration attorney, of the persecution that you suffered and/or fear that you will suffer if you are returned to your home country. This is your chance to tell your story. As traumatizing as it may be to retell it, now is the time to write down all the details. When did the events happen? Where did the events happen? Who was involved? Why did they happen to you? Why were you the target of persecution? A powerful declaration will be easy for the asylum officer to follow and, most importantly, will show the connection between the persecution and the grounds for asylum (e.g. membership in a particular social group) that you are claiming in a simple and direct fashion. You must also submit additional substantial documentary evidence corroborating your claim. Examples include affidavits from witnesses, media reports of persons in similar situations suffering persecution, as well as country condition reports by the State Department, UNHCR, foreign governments, and NGOs, such as Human Rights Watch. If available, an opinion letter or declaration from an expert in the field, or a doctor or psychologist can be very persuasive. The Instructions for Form I-589 and the form itself can be can be found at on www.USCIS.gov. An experienced immigration attorney can work with you to assemble a strong asylum application, including a legal brief that discusses the legal arguments on which your claim is based. (In Washington State, if you cannot afford an attorney, I recommend contacting Northwest Immigrant Rights Project, which offers free or low-cost immigration services for low-income individuals and families. There are similar non-profits in other states.)

Even if you do not retain an immigration attorney to represent you in your application, I still strongly recommend that anyone considering applying for asylum meet with an immigration attorneybeforethey apply, to at least have a consultation to review their eligibility for asylum and examine the evidence that they plan to submit. Asylum applicants may unintentionally and irreparably hurt their chances of obtaining asylum or other future immigration relief or benefits by submitting certain evidence to USCIS. Anything that you submit can be used against you in a removal proceeding or in bringing federal and/or civil charges against you. An experienced immigration attorney should examine all evidence prior to submitting it to the government, and if necessary, seek U.S. government records regarding an applicant through a Freedom of Information Act request.

The Asylum Interview

Once the application is filed, you will receive a notice to go the nearest USCIS office for fingerprinting. Next, an asylum interview will be scheduled, in which you and your immigration attorney or other representative will appear and be interviewed by an asylum officer. If you need an interpreter, it is up to you to bring someone who can interpret for you. Also, you are allowed to bring witnesses to give testimony in support of your claim. (Usually, any witnesses will still be in your home country, but if any are here, it may be helpful for them to testify at the interview.)

Asylum interviews typically last at least 1.5 hours but they can go on for 2.5 hours or more. The purpose of the interview is to examine your eligibility for asylum and to test your credibility. The officer will ask you detailed questions about your claim and will carefully be comparing your verbal testimony to your written application. Every question the officer asks is important, as is your response, both verbal and non-verbal.

It can be very helpful to have an immigration attorney prepare you for the asylum interview and attend the interview with you, provided the attorney is very familiar with your case. An immigration attorney may be able to clarify responses you make and point out particular supporting documents in the application to the officer. The attorney’s level of involvement will be limited by what the asylum officer allows, thus, it will depend largely on the asylum officer’s personal style. However, regardless of the particular asylum officer, your attorney or representative will be able to ask questions at the end of the interview in order to elicit any relevant information that may not have come out during the interview.

It is very rare for the officer to inform you of his or her decision at the interview. Instead, you will typically receive the decision in the mail anywhere from around two weeks after the interview to possibly several months. (Depending on the asylum office, you may be told to return to the office at a certain date/time to pick up the decision, instead of receiving it in the mail.) Some cases take only a few weeks, while others can take much longer. However, if you have been waiting longer than 6 months and you are not represented by an immigration attorney, you should have your case reviewed by an immigration attorney to determine why there may be a delay and what your options are. (Anyone who is out of status should consult with an immigration attorney anyway, immediately.)

Asylum applicants are often very intimated by asylum officers. After all, the asylum officer has a lot of power for someone who is not a judge. However, in most cases, the asylum officer cannot deny your application. In general, the asylum officer has the power to grant your asylum case or refer your case to Immigration Court.

He or she can also issue a “recommended approval," if the officer intends to grant the application but there are additional security checks required. Now, if you already have a valid legal status in the U.S., and the officer intends to deny the application, he or she can issue a “notice of intent to deny," which gives you a chance to explain in writing either why your claim should be granted and/or submit new evidence to support the claim. Be careful, there is a short deadline for your response. If you do not respond within the allotted time, or your response fails to overcome the officer’s reasons for denial, the officer will issue a final denial. Of course, the officer may also grant the application at this point as well.

*This article is neither intended to be a substitute for legal advice, nor should it be construed as legal advice because it is not specific to anyone's individual circumstances. Please consult with an immigration attorney about your individual circumstances before taking any action.

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