Asylum is an immigration status granted to people who cannot return to their home country because of a fear of persecution. A person who has been granted asylum can live in the US indefinitely, with permission to work and travel in and out of the country, and eventually apply for permanent residence and then citizenship. Asylum law is exceedingly complex, and the consequences of an asylum case can be the difference between life or death. Representation by an immigration attorney experienced in asylum law is vital.
Any person physically present in the US can apply for asylum, but not everyone is eligible to receive it; those who are not eligible for asylum are often eligible for another type of immigration status called Withholding of Removal, which is similar to asylum but with fewer benefits, such as the ability to apply for permanent residence. Most importantly, an asylum case should be filed within the first year after arrival in the US, but there are several exceptions to this rule. Many, if not most, of the asylum cases represented by The Law Office of Paul O’Dwyer, P.C. are outside of this one-year deadline, and we are generally successful in establishing an exception to it. The person who is filing for asylum is called the principal applicant, and the spouse and children of the principal applicant can be included in the application as derivatives, but they do not have to show any fear of harm, and do not even have to have the same nationality as the principal applicant, in order to be granted derivative asylum.
The procedure on an asylum case is as follows: the application is filed by sending a completed Form I-589 to a USCIS Service Center, where it is processed and then then sent to a local asylum office which sends out a receipt notice, containing the date of receipt and the person’s A number, or alien registration number. Once the application is filed, the applicant can remain legally in the US until there has been a final decision on the case. The case is then scheduled for an interview with an asylum officer. The applicant can apply for employment authorization five months after the asylum application has been filed, by filing Form I-765 with USCIS. This employment authorization can be renewed for as long as the asylum application remains pending.
The procedure for scheduling asylum interviews has recently changed. For the last few years and up until February 2018, asylum cases were scheduled for interview in the order in which they were received, meaning that the oldest cases were interviewed first, which could take anywhere from two to five years after filing. During this time, a “backlog” developed, of over three hundred thousand un-interviewed cases. In February 2018, the scheduling procedure changed, and now the newest cases are interviewed first, usually within a few weeks of the application being filed. However, there is no plan to deal with the cases in the backlog, meaning that people who have been waiting years will now have to wait years more, and perhaps indefinitely, for an asylum interview to be scheduled. Some asylum offices keep a “short list” for cases that are ready to be interviewed at very short notice, and it is also possible to request that the asylum office expedite the case, for humanitarian or other urgent reasons.
The asylum interview is conducted in a non-adversarial manner by an immigration officer with special training in asylum cases. The questions can be very broad but will always include what problems, if any, you have experienced in your home country, what kinds of problems have been experienced by other people in a similar situation in your country, and what would happen to you if you returned. If the case was filed outside of the one-year deadline, the officer will ask questions about the reasons for the late filing, to determine if there is an exception to the one-year deadline.
The asylum officer does not make a decision on the asylum application immediately and instead it is mailed out after a couple of weeks (usually within two weeks, but it can take longer). If the application is approved, then the person has asylum status, and can remain living legally in the US indefinitely, with permission to work and to travel in and out of the country. A person granted asylum is referred to as an asylee. The asylee can then sponsor immediate family members who are inside or outside the US for derivative asylum status, by filing an I-730 within two years of the grant of asylum. One year after being granted asylum, an asylee can apply for permanent residence, or green card, by filing Form I-485, which usually takes a few months to be approved. Asylee’s green cards are always backdated by a year (so that permanent residence granted on January 1, 2018, will be backdated to January 1, 2017). The practical benefit to this is that the person can apply for naturalization four instead of five years after being granted permanent residence.
If the asylum application is not approved after the asylum interview, the asylum office will refer the case to the Immigration Court by filing what is called a “Notice To Appear” with the Immigration Court, stating (usually) that the person is in the US unlawfully and is subject to deportation or removal from the United States. The applicant must show up in Immigration Court on the date given for the hearing, and can ask the Immigration Judge assigned to the case to re-hear the asylum application. The Immigration Judge can grant asylum in the same way as the asylum officer.
An Immigration Judge can also grant “Withholding of Removal” or Deferral of Removal under the Torture Convention to people who are not eligible for asylum, either because the application was filed late, because the applicant has a criminal conviction which makes him or her ineligible for asylum, or for some other reason. A person granted Withholding of Removal or relief under the Torture Convention can remain living legally in the United States indefinitely, with permission to work, but without permission to travel out of the country and without being eligible to apply for a green card.
If the Immigration Judge doesn’t grant asylum or Withholding of Removal or Torture Convention relief, he or she can order the person deported. That deportation order can be appealed to the Board of Immigration Appeals, and the Immigration Judge’s decision does not go into effect while the appeal is being decided. If the appeal is not successful, then the person has a final order of removal and is subject to being deported from the US unless there is some other basis on which he or she can remain here. Certain asylum decisions can be appealed into the federal Court of Appeals, by way of a petition for review. These federal court appeals can be very expensive and should only be undertaken if there is a strong likelihood of success.
Credible Fear and Reasonable Fear Interviews
The asylum procedure for people who claim asylum when they are detained at the border – either an airport or a land border such as the US/Mexico border – is different. In these cases, the applicant will have a “credible fear” interview with an asylum officer to determine if he or she has a “credible fear” of persecution if returned. People are usually detained while waiting for the credible fear interview. If the asylum officer finds that there is a credible fear of persecution, then the case is referred to Immigration Court for an asylum hearing, the same as with a case referred from the asylum office. If the asylum officer finds that there is not a credible fear of persecution, the applicant can ask for review by an Immigration Judge, and if the Immigration Judge agrees that there is no credible fear of persecution, there are no further appeals and the person is subject to being deported from the US immediately.
The asylum procedure for people who have re-entered the US illegally after having previously been deported is also different. The government (DHS or ICE) can “reinstate” the previous deportation order at any time, using a procedure known as “reinstatement of removal”, and if this happens, the person is not eligible for asylum. Instead, an asylum officer will conduct an interview to determine if there is a reasonable fear of persecution, which is more difficult than the credible fear interview. If the asylum office finds there is a reasonable fear of persecution, the case the case is referred to Immigration Court for a hearing on Withholding of Removal, the same as with a case referred from the asylum office. If the asylum officer finds that there is not a reasonable fear of persecution, the applicant can ask for review by an Immigration Judge, and if the Immigration Judge agrees that there is no reasonable fear of persecution, there are no further appeals and the person is subject to being deported from the US immediately. The person is usually detained throughout this process. Unlawful re-entry after deportation is also a criminal offense and can often result in a significant prison sentence. Anyone who believes that they may be subject to reinstatement of removal should immediately contact an immigration lawyer before filing any type of immigration application.
For people who are concerned about dangerous conditions or who fear persecution in their home countries, and who have no other immigration options, an asylum application can be a successful pathway to obtain legal status and ultimately permanent residence in the US. Asylum law is complicated, and those who are represented by an attorney who is experienced in asylum cases are far more likely to be successful.
The Law Office of Paul O’Dwyer, P.C. is experienced and knowledgeable in all areas of asylum law, in particular cases based on sexual orientation and fear of gang violence. If you are a family member have any fear about returning to your home country, you should schedule an appointment with us, where we will take all of the details of your case, and advise you about whether or not you have a claim that is worth pursuing.