Asylum is when a non-US citizen enters the country, either legally or illegally, and seeks refuge from his/her home country due to persecution or the fear of persecution. It is a legal protection from deportation. This article intends to answer and clarify some of the most basic features of asylum.
A person inside the United States may be granted asylum if he or she can prove a “well-founded fear of persecution” based on (1) political opinion, (2) religion, (3) race, (4) nationality, or (5) membership in a particular social group. Victims of crimes related to money most likely will not be eligible since money is not one of the qualifications. A person who is outside the U.S. may apply for refugee status based on this same basis.
It is difficult to get asylum and the application should be filed within 1 year of entering the US. The alien has to prove that he/she meets the above definition and the REAL ID Act (discussed below) makes it easier for the asylum application to be denied for small inconsistencies. If one year has passed, then it becomes much more difficult. Because every case is different, a qualified attorney should be consulted if a person is unsure how to prove that he/she has met all the requirements for asylum.
Ways to File for Asylum
There are two main ways to file for asylum: affirmatively and defensively. Affirmative applications are filed by those who are not in deportation/removal. Defensive applications are filed by those who are in deportation/removal proceedings. This does not mean if you file an affirmative application you will not be put into deportation. If your application is denied by a CIS Officer, or if they cannot make a decision on your application, your case will be referred to an Immigration Judge. This is why the application should be done correctly the first time, otherwise you could end up putting yourself in removal proceedings.
If your file goes to an Immigration Judge and you fail to show up for court, you most likely you will have a removal order in absentia, which means you got deported without being in court. Only in limited circumstances can you overturn the order.
After the Application is Approved
Once approved, you will get work authorization and you can file for a green card one year after your asylum application is approved. Prior to the REAL ID Act, it could take up to 10 years to get a green card after filing. This was because there was an annual cap on the number of asylees who were eligible to get a green card. The REAL ID Act eliminated this cap. This means, the previous waiting time of 7-10 years to get a green card after getting asylum, has significantly decreased.
How the REAL ID Act Changed Asylum
The REAL ID standards allow judges to require asylum applicants to obtain “corroborating evidence”. The rules also make these decisions more difficult to be reversed by appeal. It allows judges to base decisions on whether a person applying for asylum is credible on factors such as: demeanor, candor, inherent plausibility, consistency of an applicant’s written or oral statements (made at any time to any individual, whether or not under oath and whether or not the factor is material to the claim of asylum).
Asylees can apply for advance parole documents to reenter the US. There are circumstances when an asylee or refugee can re-enter without this document (especially when they have filed for adjustment of status).
Often, the asylee wants to visit the country where they claimed to fear persecution. While this will not automatically terminate their status, such visits will be closely examined. Therefore, the examination of this issue is very fact specific. For example, a return to visit sick family members has different implications than visits to make business contacts.
You may apply for derivative asylum benefits for your spouse or unmarried children under the age of 21 within two years of your grant of asylum. They may be eligible for derivative asylum benefits regardless of whether they are in the country legally or illegally or not at all. The following relatives may also be covered, depending on the circumstances: a child who was not yet born on the day you were granted asylum, a step-child, or an adopted child.
Asylum can be a very difficult and complex application. There are many requirements and obstacles to overcome in order to be granted asylum. It is extremely important to make sure the application process is done correctly and on time. Because of the complexity and importance of this issue, it is a good idea to contact an experienced attorney to assist with this process.
Disclaimer: This article is not meant as specific advice regarding a person’s individual case. An attorney should be consulted. This article does not create an Attorney-Client relationship.