Application for asylum and for withholding of removal to fill out

United States Asylum: What You Need to Know

Raul Perez, Esq., Miami Immigration Attorney

Raul Perez, Esq., Miami Immigration Attorney

The United States Asylum Application Process

There are two different ways to begin the United States asylum process: affirmative and defensive asylum. The affirmative asylum process begins when a refugee is physically present in the US or arriving in the US.[1] A person seeking affirmative asylum must file a form I-589, Application for Asylum and for Withholding of Removal. Once sent, the refugee will await acknowledgement from the USCIS of receipt of the application and a notice to visit an application support center for fingerprinting. The refugee will then receive an interview notice which will provide you with a date, location, and time of your asylum interview.

Once the interview is conducted the Asylum Officer will make a determination on your eligibility and a Supervisory Asylum Officer will review the Asylum Officer’s decision to ensure it is consistent with the law. Upon completion you will receive a decision either granting or denying asylum. If the officer grants the application, then the person has asylum and will be on the path toward a green card and eventual U.S. citizenship.  If the officer denies the asylum application, then they are “referred” to the Immigration Court, where a judge will consider the asylum case. Cases which are denied in the Immigration Court may be appealed to the Board of Immigration Appeals.  If the case is not granted at that level, the asylum-seeker may file a petition for review which brings it to the U.S. Court of Appeals in the circuit where the immigration judge denied the case.[2]

The defensive process for asylum can begin when you request asylum as a defense against removal from the US. In this scenario, the individual seeking asylum will have been detained and in the removal proceeding before an immigration court. The individual will file form I-589 and will appear before an Immigration Judge for an adversarial, court-like hearing. The Immigration Judge will determine if the individual is eligible for asylum. If found eligible, the Immigration Judge will order asylum to be granted. If found ineligible for asylum, the Immigration Judge will determine whether the individual is eligible for any other forms of relief from removal. If found ineligible for other forms of relief, the Immigration Judge will then order the individual to be removed from the U.S. The Immigration Judge’s decision can be appealed by either party.[3]

What is a Refugee?

An individual seeking United States asylum must be under persecution or have a well-founded fear of persecution on account of race, religion, nationality, membership in particular social group, or political opinion.[4] In addition, the individual must be unable or unwilling to return to and unable or unwilling to avail themselves of the protection of that country.[5]These individuals are referred to as “refugees.” The definition of refugee can be broken down into four parts, which must be demonstrated to the United States Citizenship and Immigration Services before a refugee can be granted asylum:

  • Fear of persecution;
  • The fear is well found;
  • One of the reasons for the persecution must be race, religion, nationality, member in a particular social group, or political opinion; and
  • The individual is unable to return to the home county because of that fear.

Who cannot apply for United States Asylum?

If you meet the definition of a refugee, then you have only passed the first hurdle. The next step is to verify that the refugee is eligible to apply for asylum. The list of individuals who can apply for refugee status is narrowed by the following exceptions:

  • The refugee must apply for asylum within one year of arriving in the United States (“US”) (notwithstanding an extraordinary circumstances);[6]

And cannot:

  • be safely removed to another country, pursuant to an agreement;[7]
  • have previously applied for asylum and been denied;[8]
  • have participated in the persecution of another person;[9]
  • have been convicted of a “particularly serious crime and constitutes a danger to the US;[10]
  • have a serious suspicion of committing a serious nonpolitical crime outside the US;[11]
  • have reasonable grounds to consider the individual a danger to the security of the US;[12]
  • be connected with specified terrorist activities, unless the Attorney General determines that the individual is no longer a danger to the secure of the US;[13] and
  • have firmly resettled in another country before arriving in the US.[14]

Do not hesitate to contact us if you have any questions or are in the process of Asylum in the United States.  As always make sure to speak with an attorney regarding the specific facts about your case. At Perez Roman Law we are here to assist you with your immigration needs, feel free to contact us for more information.

[1] 8 U.S.C. § 1158(a)(1).

[2] The Affirmative Asylum Process, (Last Reviewed: 01/26/2018), https://www.uscis.gov/humanitarian/refugees-asylum/asylum/affirmative-asylum-process

[3] Obtaining Asylum in the United States, (Last Reviewed: 10/19/2015), https://www.uscis.gov/humanitarian/refugees-asylum/asylum/obtaining-asylum-united-states

[4] 8 U.S.C. § 1101(a)(42).

[5] Id.

[6] 8 U.S.C. § 1158(a)(2)(B).

[7] 8 U.S.C. § 1158(b)(2)(A).

[8] 8 U.S.C. § 1158(a)(2)(C)-(D)

[9] 8 U.S.C. § 1158(b)(2)(A)(i).

[10] 8 U.S.C. § 1158(b)(2)(A)(ii).

[11] 8 U.S.C. § 1158(b)(2)(A)(iii).

[12] 8 U.S.C. § 1158(b)(2)(A)(iv).

[13] 8 U.S.C. § 1158(b)(2)(A)(v).

[14] 8 U.S.C. § 1158(b)(2)(A)(vi).

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