Because of the Unites States strong commitment to human rights, U.S. immigration law allows non-citizens to seek political asylum in the U.S. if that person has a reasonable fear of future persecution because of their race, religion, national origin, political opinion, or membership in a particular social group. A particular social group is defined as a group of people with a common trait that either can’t be changed or that they should never be forced to change. Common examples of social groups include individuals who are gay, lesbian, bisexual, transgendered or are members of tribes or certain ethnic groups.
Persecution is defined as harm that is severe enough that it can be considered a serious violation of one’s basic human rights. A threat to someone’s life or liberty is the most common example of persecution. The law does limit the number of people who can be granted asylum in the U.S. Asylum seekers may also include their spouse and children who are in the United States on their asylum application when they file. To include their children, they must be unmarried and under 21 years of age. A person who is granted asylum can live and work in the United States for life, along with their spouse, and unmarried children. After holding asylee status for one year, an asylee can apply for a Green Card and eventually citizenship.
How to Obtain Asylum
There are two ways to obtain asylee status in the United States. The first way is through the affirmative asylum process and the second method is through the defensive asylum process.
Affirmative Asylum Process
To obtain asylum through the affirmative asylum process, the asylum seeker must be physically present in the United States. It does not matter how they arrived in the U.S., or what their current immigration status is, but they do have to be physically present in the United States to pursue this method.
In addition to being physically present in the U.S., the applicant must apply for asylum within one year of the date of their last arrival in the U.S. This applies unless they can show that their filing delay was caused by changed circumstances that materially affected their eligibility for asylum, or if extraordinary circumstances caused the delay. Even if either of these are applicable, the asylum seeker must still file within a reasonable amount of time given these delays.
Lastly, the asylum seeker must complete and submit Form I-589, the Application for Asylum and for Withholding of Removal.
If the application is not approved and the asylum seeker does not have legal immigration status, USCIS will forward the individual a Notice to Appear and will refer their case to an Immigration Judge at the Executive Office for Immigration Review. The judge will then conduct a hearing of the case.
Defensive Asylum Process
If USCIS has initiated removal proceedings against someone, that person can request asylum as a defense against those proceedings. For the defensive asylum process to take place, the asylum seeker must be in removal proceedings in immigration court with the Executive Office for Immigration Review (EOIR).
Immigration judges hear defensive asylum cases in courtroom-type proceedings and will hear arguments from both the asylum seeker and the government. Because of the courtroom-type nature of these proceedings, asylum seekers are well served to have an attorney with them at the hearing.
After the hearing, the Immigration Judge will either grant the asylum seeker asylum or if he or she is found ineligible for asylum, the judge will determine whether the asylum seeker is eligible for other forms of relief. If the asylum seeker is not eligible for any other form of relief, the judge will order the individual to be removed from the United States. Either party can appeal the ruling of the Immigration Judge if they are dissatisfied with it.
Persons who are granted asylum can apply for an Employee Authorization Document, Social Security Card, Green Card, and immigration benefits for their spouse and unmarried children under the age of 21. For example, an asylum seeker may apply for derivative asylum status for their spouse and the children they included in their asylum application.
Although U.S. immigration law doesn’t cap the number of people who can be given asylum status in the U.S., U.S. asylum law is still very complex. It is designed to help people that are truly in need but often faces a number of fraudulent claims. Because of this, it is best to work with an experienced immigration attorney if you are considering seeking asylum status.
Immigration attorney Mona Tehrani has significant experience in immigration matters and can assist you with your application for asylum. Please contact us to receive more information or to schedule an appointment.