Established in 1980, with Over 30 Years of PROVEN Success in All Phases of U.S. Immigration law.

OBTAINING ASYLUM & WITHHOLDING OF REMOVAL

Overview of the Eligibility Requirements for Asylum

People fleeing religious or political oppression have been seeking asylum in the United States since before our country was founded. That right still exists under current law but is very carefully defined and enforced. A person within the United States can apply for asylum if he or she (1) applies for asylum within one year of entering the U.S. and (2) satisfies the definition of a “refugee.” The definition includes: any person who is unable or unwilling to return to his or her home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” This definition means that persons fearing prejudice or harm resulting from a personal dispute are not entitled to asylum unless the government in their home country is unwilling or unable to protect them. Similarly, individuals who have general claims that life in their home country is “dangerous” “hard’ or “unlivable” are not entitled to asylum. Furthermore, general country conditions, even in countries like Pakistan or the Sudan where terrorist attacks are frequent, do not necessarily qualify you for asylum unless you can prove that you are personally threatened by them.

The requirement that applications must be filed within a year of entry is also strictly applied. There is an exception to this requirement to file for asylum if you can show 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. These may include certain changes in the conditions in your country, such as a change of government or certain changes in your own circumstances, such as severe illness or the issuance of an arrest warrant for you at your native country.

An asylum applicant can file for work authorization 150 days after the filing of the application.

Requirements for Withholding of Removal

Applications for Withholding of Removal are similar to applications for Asylum (they are even filed on the same immigration form- I-589.) But they have major difference:

  • Withholding Applications do not have to be filed within one year of entering the United States.
  • Withholding applications are not discretionary. If the applicant can prove that he or she qualifies as a refugee, the judge must grant Withholding. Asylum applications are discretionary on the part of the judge. This means even the judge determines you are a refugee the judge can still deny the case for certain criminal acts, failure to file income taxes, and other serious immigration violations.
  • The amount of proof (known as the burden of proof) is much higher in Withholding cases. This means the testimony and supporting documents must be very strong – much stronger than that required in asylum cases.
  • The granting of Withholding of Removal results in the issuance of a removal (or deportation) order. The judge withholds or “stays” the removal, allowing the immigrant to remain indefinitely in the US but the removal order will generally prevent the applicant from becoming a permanent resident unless he or she can later return to court to have the order reopened.
  • An applicant for withholding cannot usually obtain a work card while the case is pending before the judge and these cases can often pend for many years.
  • Individuals approved for Withholding of Removal cannot later travel outside the US
  • Asylum, unlike withholding, will allow the immigrant to apply for a green card after one additional year.
  • An asylee can later bring in derivative beneficiaries including a spouse and children under 21. An individual granted withholding cannot bring derivative family members.

The Application Process

An application for asylum or withholding may be filed “affirmatively” or “defensively.” We say the application is affirmative when you come forward on your own and seek asylum. By contrast, a “defensive” application is one that you file when you have been detained by an immigration official and face possible removal from the U.S. Both types of applications are filed on the same form, known as an I-589. You file an asylum application affirmatively by sending it to a USCIS Service Center designated by the government and are then interviewed by Asylum Officers. The interviews take place at one of the eight Asylum Offices throughout the U.S. (or, if the applicant lives far from one of those offices, at a District Office) usually within 6-8 weeks of filing. The asylum officer will review your claim with you and usually tell you to return within 2 weeks for a decision.

A defensive application is filed with the immigration court if immigration officials seek to remove you from the U.S. This will happen if you file an affirmative application for asylum and the asylum officer does not approve your application or if you are detained by agents of Immigration and Customs Enforcement (ICE) entering or within the U.S.

Frequently Asked Questions

Q. How do I file for asylum?

The application is filed on form I-589. If you are not now and have never been in removal (deportation) proceedings, you would send the application in triplicate to the regional center having jurisdiction where you live in the U.S. If you are already in removal proceedings, you file the I-589 with the immigration court.

Q. Is there a filing fee?

No.

Q. How hard is it to win an asylum case?

Being granted asylum is usually the result of three factors: the strength of your case, the disposition (or predisposition) of the asylum officer or judge, and any negative factors against you, such as criminal arrests. It is critical to obtain as much supporting documentation as possible to submit with your application. This documentation includes such things as supporting affidavits from witnesses, police reports, arrest records, newspaper articles about you and your problems, medical records if your were physically abused, and background information about your country. The application should also include a very detailed statement from you, explaining all of the facts that make you believe you are entitled to asylum. Generally, the more detail you include in your statement, the greater the chance of success. Withholding applications require even greater documentation.

Q. What will happen if my asylum application is denied?

If you file an affirmative asylum application and the asylum officer does not approve your case, you will be “referred” to an immigration judge. This means that removal (deportation) proceedings are being started against you. You can renew your asylum application in removal proceedings. If the judge decides against you he or she will enter a removal order against you.

Q. If I file an affirmative asylum application is it likely I will be detained?

Generally no, not unless there is already a deportation order against you, you have committed one or more crimes in the U.S. or you are suspected or terrorist or similar activity.

Q. Can I Still Apply for Asylum Even if I Am Illegally in the United States?

Yes, you may apply even if you entered the U.S. illegally or entered legally but have remained here illegally. You may apply for asylum regardless of your immigration status as long as you file your application within one year of your last arrival or demonstrate that you are eligible for an exception to that rule based on changed circumstances or extraordinary circumstances, and that you filed for asylum within a reasonable amount of time given those circumstances.

Q. I entered the U.S. on a false passport. Should I file my asylum application under my real name?

Yes. Although USCIS will likely forgive the illegal entry, they will NOT likely forgive a falsified asylum application.

Q. I have a brother who was detained by immigration while entering the U.S. He wants to apply for asylum. What should he do?

Individuals detained while entering the U.S. have the right to apply for asylum. He should immediately speak with an immigration officer and ask for asylum. The officer will refer him to an asylum officer who will conduct a “credible fear” interview to determine if he has a plausible fear of returning home. Although asylum officers differ in their determinations, the requirements of proof are considerably less than he will need to show to have his application later approved by an immigration judge. If the asylum officer denies his credible fear application, you brother can have the matter reviewed by an immigration judge. If the officer finds that your brother does have a credible fear of returning home, your brother will be eligible for a bond.

Q. Will I get permission to work in the U.S. after filing my asylum application?

Not initially. For asylum applications filed after January 4, 1995, employment authorization will not be granted for a period of 180 days or until the granting of asylum, whichever occurs sooner. Immigration professionals refer to this as the asylum “clock” which starts running when USCIS (or the immigration court) receives the completed asylum application. If you affirmatively file your asylum application with USCIS and the case is referred to an immigration judge by the asylum officer who reviews your case, the clock will continue to run from the date of initial filing. If no decision is made on your case after 150 days, you can file the application for your work card. If you fail to appear for your asylum interview or for biometrics (fingerprints) or miss a court date, the clock will stop. Individuals filing for asylum more than 1 year after entering the US are usually nor eligible for work authorization.

Q. Can I get permission to travel outside the U.S. while my asylum case is pending?

In some instances, the answer is yes, but be careful. If you claim you will be killed if you return home to your country and then get travel permission and return home (and don’t get killed!) it will likely weaken your case.

Q. Will my country’s consulate or will my government back home learn of my asylum application?

The law provides that the information in your application cannot be revealed to a third party without your written consent.

Q. What About My Spouse and Children?

You must list your spouse and all your children on your asylum application regardless of their age, marital status, whether they are in the United States, or whether or not they are included in your application or filing a separate asylum application. You may ask to have included in your asylum decision your spouse and/or any children who are under the age of 21 and unmarried, if they are in the United States. This means that, if you are granted asylum, they will also be granted asylum status and will be allowed to remain in the United States with you. However, if you are referred to the Immigration Court, they will also be referred to the court for removal proceedings. Children who are married and/or children who are 21 years of age or older at the time you file your asylum application must file separately for asylum by submitting their own asylum applications (Form I-589).

Once you are granted asylum, you may petition to bring your spouse and/or children unmarried and under the age of 21 as of the date you filed the asylum application to the United States or to allow those already here, who were not included in your asylum decision, to remain. If you are granted Withholding of Removal by an immigration judge, you will not be eligible to bring family members to the United States.

Q. What Happens if My Child Turns 21 After I Have Filed My Asylum Application?

Your child will not “age out” and will continue to be included in your application if he or she turned 21 years of age after your asylum application was filed but while it was pending. Your child must have been unmarried and under 21 years of age on the date that you filed your I-589. The “filing date” is the date that USCIS received your application.

There is no requirement that your child have been included as a dependent on your asylum application at the time of filing, only that your child be included prior to the decision made on your claim. This means that you may add to your asylum application an unmarried son or daughter who is 21 years of age, but who was 20 at the time you filed your asylum application.

Q. How Long Does the Process Take?

With affirmative applications, the time between filing the application and the initial interview is usually about 6 weeks. In most cases, the asylum officer will conclude the initial interview by telling you to return in two weeks for a decision. At that time your application will generally be approved or you will be served with papers that start removal proceedings. Once you are before an immigration judge, the time frame will vary widely. Some judges have very long case backlogs and the procedure can take more than a three years to resolve.

Q. What if the Immigration Judge denies my case?

You have an automatic right of appeal to the Board of Immigration Appeals (BIA) in Washington, DC. The appeal must be filed within 30 days of the judge’s decision. While your case is on appeal, you will have the right to remain in the U.S. and extend your employment authorization.