Asylum

1. What is asylum?
2. What’s the difference between asylum status and refugee status? The terms are closely related.
3. Who can apply for a political Asylum?
4. How does a refugee obtain a political asylum?
5. The conception of well-founded fear of persecution is central to asylum. What are its key elements?
6. Who cannot get asylum?
7. Where do you request asylum?
8. Is there a deadline within which I must file?
9. Can I apply for asylum if I am illegally in the U.S.?
10. Can I apply for asylum at an American embassy?
11. Are there any quotas on the number of individuals that can apply for asylum status?
12. It is my understanding that there are two types of processes for applying. Is that correct?
13. What forms do I need to file out?
14. Where are the INS regional service centers?
15. Can my application include my family?
16. What happens at the INS interview?
17. Can I submit documents in a language other than English?
18. Telling it to the immigration judge
19. The judge has turned down my claim. Now what happens?
20. Can I be deported while I am waiting for a decision from the BIA?
21. Can I leave the United States while I wait for the board’s decision?
22. I am not qualified for asylum status, but I fear being tortured when I return home. Is there any other recourse available to prevent this?
23. What is withholding of removal?
24. What is expedited removal?
25. What is Credible fear interview?
26. Is a finding of credible fear of persecution the same as a grant of asylum?
27. What is temporary protected status (TPS)?
28. Can I work in the United States?
29. Can I travel outside the United States?
30. How soon can I apply for permanent resident status?
31. Do I need an attorney?
32. More Help

1. What is asylum?

Asylum is a form of protection that allows individuals who are in the United States to remain here, provided that they meet the definition of a refugee and are not barred from either applying for or being granted asylum, and eventually to adjust their status to lawful permanent resident. The asylum law is applicable to the category of people who seek protection from the prosecution for political opinion, race, religion, nationality or membership to a particular social group in their home country, who meet the definition of “refugee”. Individuals who apply while they are in the United States are asylum applicants.

Be aware that though someone has suffered persecution in his/her home country and are now in the U.S., it is not a “given” – guaranteed -- that the individual will get asylum.

Check the following websites:

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3...

http://www.uscis.gov/portal/site/uscis

http://www.uscis.gov

2. What’s the difference between asylum status and refugee status? The terms are closely related.

Difference between Refugee Status and Political Asylum: Both refugees and asylees must fall under this category. The most important difference is that the Refugee status application is done outside the applicant's home country as opposed to the Asylee who can apply while in the United States.

Both terms refer to foreign nationals who fear political, race, nationality, religious, or social persecution in their home country.

3. Who can apply for a political Asylum?

A foreign national who is already on US soil or at its borders can apply for asylum if they meet the definition of “refugee”. If they experience of persecution in your home country or fear of persecution based on race, religion, or political opinion.

A “refugee” is someone unable to return to their home country (or in the last place lived) because of past persecution or a well-founded fear of future persecution because of race, religion, nationality, membership in a particular social group, or political opinion.

You may apply for political asylum even if you are illegally in the United States.

If you meet the qualifications, you may be approved for political asylum unless the USCIS proves that conditions have substantially improved in your home country.

Political Asylum allows you to stay and work in the United States temporarily. An asylum seeker may ask for Derivative Status for his or her spouse and children.

4. How does a refugee obtain a political asylum?

There are 2 general steps in the application process for political asylum.

The first step involves filing your application (Form I-589, Request for Asylum and supporting documents) and having an interview with the USCIS regional service center. If the application is approved, you can legally stay in the United States for one year and apply to work as well. If the application is denied, you may ask for reconsideration of your case. If still denied, you may enter an appeals process.

If the refugee is overseas, application should be made to one of six posts or the nearest office of the United Nations High Commissioner for Refugees. If the applicant is already in the United States, the applicant must apply for asylum within one year of arriving here.

If approved, you may file for Permanent Residency after one year. You will submit form (I-485) and supporting documents as well as have another interview with the USCIS.

5. The conception of well-founded fear of persecution is central to asylum. What are its key elements?

The key to an asylum claim is proving that you face a well-founded fear of persecution for one of five reasons: race, religion, nationality, political opinion or membership in a "social group". Or you qualify because you can prove you were forced to undergo sterilization or an abortion or fear genital cutting. This well-founded fear standard does not necessarily mean torture, killing, imprisonment, or harassment or that you are specifically targeted for persecution or that you have an economic hardship or a repressive government.

You must be very clear about why you fear persecution. You can make a case by convincing the court that you have suffered persecution in the past and that the conditions in your country have not changed. Or you can show that it is likely you will suffer persecution if returned to your country. Your own testimony may be enough if it is compelling, consistent, believable, and specific. Your case is strengthened if you bring corroborating proof, such as newspaper articles, affidavits of witnesses or experts, journals, books, doctors’ statements, photographs, etc., to the hearing.

The courts recognize the difficulty asylum applicants face in proving a claim. It can be an emotional nightmare for those traumatized by events that forced them to flee their homeland. Simply having a discussion in the first place and in a language that they are grappling to learn are often daunting tasks. Many cannot stomach the discussion and questioning. It is for these reasons that we don’t advocate representing yourself; get professional legal advice (see http://attorneypages.com for a list of counsel qualified to handle the matter.

6. Who cannot get asylum?

Some reasons a person will not be eligible for asylum include those who have assisted in persecuting others, have been convicted of serious crimes, are a danger to the national security of the US, or are resettled in another third country before coming to the US.

7. Where do you request asylum?

You can request asylum when arriving at a United States border post (airport, seaport or land crossing). You can also ask for asylum in the United States by filing (1) an application with the INS, regardless of how you entered (e.g., without valid travel documents) or your current immigration status (e.g., overstayed visas), or (2) with an immigration judge in a deportation/removal proceeding.

8. Is there a deadline within which I must file?

If you are physically present within the United States, you must apply for asylum within one year, unless you can prove that extraordinary circumstances kept you from applying within that year. Otherwise, you may apply upon entering the United States.

9. Can I apply for asylum if I am illegally in the U.S.?

Yes. You can.

10. Can I apply for asylum at an American embassy?

No. You must be physically present in the United States to apply.

11. Are there any quotas on the number of individuals that can apply for asylum status?

There is no quota limit on the number of people who may obtain political asylum, however, there is an annual limit of 10,000 on the number of people who may obtain permanent residency based on political asylum.

12. It is my understanding that there are two types of processes for applying. Is that correct?

Asylum can be filed in one of two ways: (1) an affirmative application (the more common of the two) by someone who has NOT been apprehended by the INS or (2) a defensive application by someone who the INS has begun deportation/removal proceedings.

Regarding item (1), an affirmative asylum application (Form I-589) is filed with the Immigration and Naturalization Service (INS) and mailed, along with supporting documents and affidavits, to the INS Regional Service Center for the area where you live (see listing below). You will be contacted by the office and scheduled for an interview with an INS asylum officer. With item (2), a defensive asylum application (Form I-589) is filed with the immigration judge who has been assigned your case.

13. What forms do I need to file out?

The INS website lists the forms you need to file for an asylum claim. http://www.uscis.gov

If you are not in removal proceedings, your application can be mailed to an INS Regional Service Center. If you are in removal proceedings, the application must be filed with the immigration judge assigned to your case.

14. Where are the INS regional service centers?

The USCIS Service Centers were established to handle the mail, file, data entry, and adjudication of most applications for immigration services and benefits. Those applications should be mailed to USCIS Service Centers - Service Centers are not staffed to handle walk-in applications or answer questions. Three of the four Service Centers have established special Post Office boxes to receive applications mailed to the Center by applicants or petitioners residing in its service area. The applications and petitions processed by each Service Center are listed on its home page, as are the special Post Office box numbers and zip codes by form type for the Service Centers using them. Prospective applicants should look at this list of forms to confirm that they are accepted by the Service Center in their area.

Vermont Service Center (VSC)

Jurisdiction: Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Puerto Rico, Rhode Island, Vermont, Virginia, Virgin Islands, West Virginia, and the District of Columbia. Phone: 802-527-4913.

Website: https://egov.uscis.gov/cris/jsps/Processtimes.jsp?SeviceCenter=vSC

Nebraska Service Center (NSC)

Jurisdiction: Alaska, Colorado, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin and Wyoming. Phone: 402-323-7830.

Website: https://egov.uscis.gov/cris/jsps/Processtimes.jsp?SeviceCenter=NSC

Texas Service Center (TSC)

Jurisdiction: Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, New Mexico, North Carolina, South Carolina, Oklahoma, Tennessee, and Texas. Phone: 214-381-1423.

Website: https://egov.uscis.gov/cris/jsps/Processtimes.jsp?SeviceCenter=TSC

California Service Center (CSC)

Jurisdiction: California, Nevada, Arizona, Hawaii, Guam. Phone: 949-831-8427.

Website: https://egov.uscis.gov/cris/jsps/Processtimes.jsp?SeviceCenter=CSC

National Benefits Center

Website: https://egov.uscis.gov/cris/jsps/NBCprocesstimes.jsp

Administrative Appeals Office – see PDF file

15. Can my application include my family?

You can include your spouse and any unmarried children under the age of 21 in your asylum application, if they are also physically in the United States. If you are including your spouse, include your marriage certificate and, if applicable, any proof of termination of prior marriages. Birth certificates must be included for any unmarried under 21- children. In the event you don’t have any of these documents, submit medical records, religious records, school records and an affidavit form someone to prove the event.

If you have asylum status, you may apply for derivative asylum benefits for your spouse or children. This means that your spouse or children may be granted asylum status based on your own asylum status.

16. What happens at the INS interview?

An INS asylum officer screens all asylum applicants in a personal interview. You will be notified of the time and place of the interview. The officer has full discretion whether to approve or deny your application. Since you will be questioned as to why you fear persecution in your home country, the ability to speak English is necessary (or you may bring an interpreter).

If you clear the interview, you are awarded asylee status. If you lose and are in the U.S. illegally (e.g., visa expired), you are placed in deportation/removal proceedings. If so, you should request that an immigration judge reconsider your case.

17. Can I submit documents in a language other than English?

Yes, you may submit a foreign-language document, but it must have a certified English translation with it.

18. Telling it to the immigration judge

Immigration judges hear asylum cases from (1) affirmative applicants whose cases were denied by the asylum officer; (2) arriving asylees who are detailed under the expedited removal/credible fear procedures; and (3) those arrested by INS who are applying for asylum for the first time in court. Immigration judges will decide in a court proceeding whether your case has any merit. Their decisions are discretionary.

19. The judge has turned down my claim. Now what happens?

If you lose your asylum case, you can appeal your case to the Board of Immigration Appeals (BIA) and from there to the U.S. Circuit Court of Appeals. There is a deadline for filing an appeal with the BIA.

If you win on appeal, the BIA will either grant you asylum or send your case back to the immigration judge for further proceedings.

20. Can I be deported while I am waiting for a decision from the BIA?

In most cases, the INS is not prohibited from deporting you. However, it also depends on the type of appeal that is filed. Some have an automatic stay of deportation; others do not. For example, if you appeal the judge’s decision to have you removed or deported, you generally cannot be deported while the Board is making its decision on your appeal. If you are already in deportation proceedings and file an appeal of the judge’s denial to reopen your case because you failed to appear at the hearing, you generally will not be deported pending the decision of the BIA.

21. Can I leave the United States while I wait for the board’s decision?

Not a good idea. If you leave the United States while the board is considering your appeal, your appeal may end. The board views this as a withdrawal of your case. A withdrawal ends your appeal and the judge’s decision becomes final.

22. I am not qualified for asylum status, but I fear being tortured when I return home. Is there any other recourse available to prevent this?

In addition to asking for asylum and withholding of deportation/removal, a foreign national can give evidence to the court that he/she is “more likely than not” faced with the possibility of being tortured, for any reason, should he/she be returned to their country of origin. To be considered torture, it must be an extreme form of cruel and inhuman treatment and it must be intended to cause severe pain and suffering. There is no requirement that torture be on account of race, religion, nationality, membership in a particular social group, or political opinion -- the traditional bases for asylum eligibility.

You can give evidence of your past experiences and the general conditions in the country the US is attempting to deport you. If you make a case, you cannot be extradited or deported to face torture at home. However, you can be removed to a third country.

The procedure for application is the same as filing for asylum, Form I-589. You include a detailed explanation of the mistreatment you experience or any threats made against you by a government or somebody connected to a government on the form.

23. What is withholding of removal?

If the immigration judge in his/her discretion turns down your asylum claim, you still can remain temporarily in the U.S. under the withholding of removal law. Withholding of removal is in some ways similar to asylum, but is governed by a higher standard, requiring applicants to establish that it is “more likely than not” their life or freedom is threatened if returned to the proposed country of removal. (An applicant for asylum need only demonstrate a well-founded fear of persecution.) However, the individual may be deported or relocated to another third country.

You do not qualify for withholding of removal if you have engaged in genocide, persecuted others, been convicted of a particularly serious crime, committed a serious non-political crime outside the US or represent a danger to US security.

24. What is expedited removal?

Crossing the U.S. border – by air, land, or sea -- with no or improper (e.g., counterfeit) immigration documents is a very serious offense for the arriving foreign national: immigration inspectors, at their own discretion, can put you on the next flight home in what is called “expedited removal” procedures. Under this on-the-spot expulsion, the legal protections that U.S. citizens take for granted do not apply during the screening process. For example, there is no removal hearing and no access to family, relatives or legal help. Furthermore, persons issued expedited removal orders cannot return to the U.S. for five years, twenty years following a second or subsequent removal.

Alternatively, a foreign national who, upon entering the U.S., tells the INS agent he/she is fleeing persecution, can trigger an asylum claim. The foreign national receives a statement of his/her rights and gets a formal "asylum interview" with another immigration official (the so-called "credible fear interview") to determine whether his or her claim has a possibility of succeeding.

25. What is Credible fear interview?

The credible fear screening interview is conducted fairly quickly after the foreign national informs the immigration officer at the port of entry that he/she is fleeing persecution or seeking asylum. The individual is transferred to a detention center where a specially trained asylum officer conducts an interview. If the individual passes the interview, then he/she will be allowed to present a claim for asylum to an immigration judge through the regular asylum hearing process. Those who do not pass may request a review before an immigration judge; the review is expedited and limited.

26. Is a finding of credible fear of persecution the same as a grant of asylum?

No, the credible fear interview is only the first step in determining whether someone has a claim to asylum. Its purpose is to determine who should have a chance to present an asylum claim before an immigration judge. A credible fear of persecution only means there is a significant possibility, taking into account the credibility of the statements made by the alien in support of his or her claim and other facts known to the officer, that the alien could establish eligibility for asylum.

27. What is temporary protected status (TPS)?

Temporary immigration status is for foreign nationals currently residing in the U.S. whose homeland conditions are recognized by the US government as being temporarily unsafe or overly dangerous to return to (e.g., war, earthquake, flood, drought, or other extraordinary and temporary conditions). TPS does not lead to permanent resident status. As the name indicates, it is temporary, granted anywhere from 6-18 months, with extensions. For more detailed information, check out the INS website.

28. Can I work in the United States?

Asylum applicants cannot apply for work permits at the same time as filing their asylum applications. Rather they must wait 150 days from the date they filed their properly completed original asylum applications. The INS has 30 days to either grant or deny a request for employment.

29. Can I travel outside the United States?

Yes, but you must receive permission in advance before leaving in order to return to the U.S. This advance permission is called “Advance Parole”. If you do not apply before you leave the country, you will not be permitted to return to the U.S. and your application for asylum will be considered abandoned.

On the other hand, if your application for asylum is approved, you apply for a Refugee Travel Document, allowing you to travel in and from the United States.

For more information, click http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919... for the INS publication, How Do I Get a Travel Document?

30. How soon can I apply for permanent resident status?

One year after you are granted asylum you and your family can apply for permanent residency on form I-485, Application to Register Permanent Residence or Adjust Status. For more information regarding the process, the INS has information on its website at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e...

31. Do I need an attorney?

Immigration law is complex. And Congress and the INS change procedures quite often and, in the wake of September 11th, you can expect more aggressive changes, and perhaps more border crackdowns. Furthermore, foreign nationals may find themselves playing by a different – and a harsher – set of rules from the ones in effect when they arrived in the country. Given this, we would recommend getting in touch with an attorney who is familiar with immigration proceedings. Check http://www.attorneypages.com for a list of immigration attorneys.

32. More Help

For more information visit:

http://www.rapidimmigration.com/usa/1_eng_kit_asylum.html

http://www.uscis.gov/portal/site/uscis