If you have been persecuted in your home country based on your race, religion, nationality, political opinion, or your membership in a particular social group, or if you have a well-founded fear of future persecution, an asylum attorney can help you determine whether you are eligible to apply for asylum in the United States.
There are two processes by which an asylum lawyer can help you seek asylum – the affirmative process and the defensive process.
Asylum Eligibility/Asylum Bars
You may only apply for asylum if you are arriving in or are already physically present in the United States. To apply for asylum in the United States, you may ask for asylum at a port-of-entry (airport, seaport, or border crossing), or if you are already in the United States, you may file a specific form that you can find by going to the USCIS web-site. This application is entitled Application for Asylum and for Withholding of Removal. You may apply for asylum regardless of your immigration status, whether you are here legally or illegally.
The burden of proof is on the applicant for asylum to establish that he has a credible fear of persecution, and an asylum lawyer can help you present evidence of persecution. The applicant may qualify as a refugee either because he has suffered past persecution or because he has a well-founded fear of future persecution in his native country.
You must apply for asylum within one year of your last arrival in the United States. The only way that you can apply for asylum a year after you entered the United States is if you can demonstrate that there are changed circumstances that materially affect your eligibility for asylum or extraordinary circumstances directly related to your failure to file within one year. You must apply for asylum within a reasonable time under the circumstances. Changed or extraordinary circumstances may include certain changes in the conditions in your country, changes in your own circumstances, and other events. An experienced asylum attorney will help you determine if you are eligible or if circumstances have changed to make you eligible to file for asylum.
You will be barred from applying for asylum if you previously applied for asylum and were denied by the Immigration Judge or Board of Immigration Appeals, unless you demonstrate that there are changed circumstances which materially affect your eligibility for asylum. You will also be barred if you could be removed to a safe third country pursuant to a bilateral or multilateral agreement. Currently, the United States has a Safe Third Country agreement with only one country, Canada, and the agreement does not apply to individuals applying for asylum affirmatively.
In sum, an asylum-seeker is ineligible to apply for asylum if he or she:
- Failed to file an asylum application within one year of his or her last arrival in the United States or April 1, 1997, whichever is later. There is an exception to this rule. To establish such an exception, the applicant has to demonstrate either the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing. The applicant needs to have filed the application within a reasonable time given the circumstances in order to be eligible for an exception.
- Previously applied for asylum and was denied by an Immigration Judge or the Board of Immigration Appeals. Exceptions exist here as well. To establish an exception, the asylum-seeker must show the existence of changed circumstances which materially affect his or her eligibility for asylum.
- Can be removed to a safe third country pursuant to a bilateral or multilateral agreement.
If you are physically present in the United States, either legally or illegally, and want to claim asylum status, you should seek the help of an asylum attorney within one year of your last arrival in the United States. If you apply for asylum, the United States Citizenship and Immigration Services (USCIS) will consider your petition. You will receive two notices: The first notice will acknowledge the receipt of your application; and the second notice will instruct you to visit the nearest Application Support Center (ACS) for fingerprinting. Once the USCIS conducts fingerprinting and background investigation, you will be scheduled for an interview with an asylum officer. After your interview, the USCIS will determine your eligibility for asylum based on the required criteria. You will then have to pick up the decision on your case from the USCIS office where you interviewed.
If USCIS denies the petition, USCIS will refer the petition to an immigration judge, who will make a new and independent decision. You will be allowed to remain in the United States while your petition is pending, but will probably not be allowed to work. There are several different scenarios if the USCIS denies the asylum application. Your asylum lawyer will work with you to help figure out a new plan in this case.
If the applicant is still in lawful status at the time the Asylum Office issues the decision, and if the Asylum Office does not believe that the applicant has met his burden of proving his case for asylum, the applicant will receive a Notice of Intent to Deny (“NOID”). The applicant has 16 days in which to respond to the NOID in the hope of overturning the decision. If a response is not timely, the decision becomes final; therefore, working with an asylum lawyer is important to make sure you meet the 16-day deadline.
If the case is denied, there is no appeal from the denial. The applicant can, however, reapply for asylum in the future after falling out of legal status.
If the asylum application is not approved by the Asylum Office and the applicant is not in lawful status, he or she will be served with a Referral letter and a Notice to Appear (“NTA”) in Immigration Court, where an asylum attorney can help represent your interests. The NTA is the charging document which initiates removal proceedings. Failure to appear in Immigration Court will result in an in absentia removal order being issued against the applicant. As discussed below, the applicant can renew an application for asylum before the Immigration Judge.
Please see our asylum lawyers for assistance with the affirmative asylum process.
If the Executive Office for Immigration Review (EOIR) has already initiated removal proceedings and you believe you are eligible for asylum, you will need to make a defensive application. A defensive application for asylum occurs when you request asylum as a defense against removal from the United States. A qualified asylum attorney will know if the affirmative or defensive process is appropriate.
You may find yourself in a defensive asylum in two situations. One situation is when you are referred to an Immigration Judge by USCIS after you have been determined to be ineligible for asylum at the end of the affirmative asylum process. An immigration judge will determine whether you are eligible for asylum or any other form of removal relief. If you are found eligible, the immigration judge will order asylum to be granted. If found ineligible for asylum, the immigration judge will determine whether the individual is eligible for any other forms of relief from removal. If found ineligible for other forms of relief, the immigration judge will order the individual to be removed from the United States.
The second situation is when you are placed in removal proceedings because you were either apprehended (or caught) in the United States or at a U.S. port of entry without proper legal documents or in violation of their immigration status, OR were caught by U.S. Customs and Border Protection (CBP) trying to enter the United States without proper documentation, were placed in the expedited removal process, and were found to have a credible fear of persecution or torture by an Asylum Officer.
Contact our office today to discuss your immigration questions. We are available during regular business hours and by appointment at other times. For your convenience, we offer payment plans for our clients who need them.