Law, Procedure And Scope For Claiming Asylum In The USA
Persons who are already in the United States and are unable or unwilling to return their 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, may file an application for asylum before the United States Citizenship and Immigration Services (USCIS). However, to seek asylum, they shall meet the definition of a refugee entrenched in the Refugee Act, 1980.
The general conditions and circumstances for claiming asylum in the United States are as follows:
- The applicant shall ask for asylum at the port of entry (airport, sea port or border crossing).
- The applicant may include his or her spouse and children who are in the United States at the time he or she files the application or at any time until a final decision is made on his or her case.
- The initial interview for asylum applications is to take place within 45 days after the date the application is filed, and a decision is to be made within 180 days after the date the application is filed (Section 208 (d)(5) of the Immigration and Nationality Act, 1952).
- The applicant may apply for employment authorization (Form I-765) after expiry of 150 days from the date of filing of his or her asylum application (Form I-589).
- After one year of being granted asylum, the applicant may file application (I-485) for the Green Card (permanent residence) in the United States.
- Within two years of being granted asylum, the applicant may file application (Form I-730) to bring his or her spouse and children (under the age of 21) into the United States.
Ways of Obtaining Asylum
There are two ways to obtain asylum in the United States:
- Affirmative Process
- Defensive Process
1. Affirmative Process
The steps of application under the affirmative process are as follows:
- The applicant must be physically present in the United States.
- The applicant shall file application (Form I-589) for asylum and for withholding of removal before the US Citizenship and Immigration Services (USCIS). This application includes the request to not deport the applicant and it is also the beginning of the Green Card process. A minor can also apply for asylum.
- The applicant has to apply within one year of the date of his or her last arrival in the United States.
- According to the Immigration and Nationality Act (INA), US Citizenship and Immigration Services (USCIS) should follow the following timeline:
Within 21 days after USCIS receives complete asylum application, the applicant will receive the following via mail:
i. receipt notice (confirming that USCIS received the application);
ii. biometrics (fingerprinting) appointment notice for the applicant and any children included in asylum application who are older than 14; and
iii. interview notice (specifying the place, day and time of the asylum interview).
- Within 43 days after USCIS receives complete asylum application, the applicant will be interviewed at one of the eight US Asylum Offices. Currently, the Asylum Offices are located in the following cities: Arlington (VA), Chicago, Houston, Miami, Newark, New York, Los Angeles and San Francisco.
- Within 60 days after USCIS receives complete asylum application, including interview, the applicant will receive the decision. The Asylum Officer will either grant the asylum application or deny it and refer the application to the Immigration Court.
- The applicant may find out the status of a pending asylum application by sending a written inquiry or by visiting the relevant Asylum Office with jurisdiction over the case.
- The applicant will be eligible to apply for an employment authorization document (EAD), after expiry of the period of 150 days, before USCIS.
- The applicant may live in the US during pendency of the case but most asylum applicants are not authorized to work.
- In case of refusal of asylum by the USCIS, Form I-862 is issued and the case is immediately referred to the Immigration Judge at the Executive Office for Immigration Review (EOIR). The Immigration Judge conducts a de novo (fresh) hearing of the case. The order of the Immigration Judge is also appealable.
- Rules concerning eligibility requirements and procedures to be followed by applicants and the government are incorporated into the Code of Federal Regulations (CFR) at 8 CFR § 208. Asylum Officers also rely on case law to adjudicate asylum claims.
- According to asylum statistics issued by the US Department of Justice, a total of 45,770 asylum applications were received in financial year (FY) 2015, out of which 8246 were accepted and asylum was granted, while 8,833 claims were denied. 160 applications were filed by Pakistani citizens out of which 56 were accepted and 47 were denied. While in FY 2014, a total of 242 asylum applications were filed out of which 97 were granted while 50 applications were denied by the Immigration Courts.
2. Defensive Process:
A defensive application for asylum occurs when you request asylum as a defense against removal from the US. For the asylum processing to be defensive, you must be in removal proceedings in the Immigration Court with the Executive Office for Immigration Review (EOIR).
Individuals are generally placed into defensive asylum processing in one of two ways:
i. They are referred to an Immigration Judge by USCIS after they have been determined to be ineligible for asylum at the end of the affirmative asylum process, or
ii. They are placed in removal proceedings because they:
Were apprehended (or caught) in the United States or at a US port of entry without proper legal documents or in violation of their immigration status,
OR
Were caught by US Customs and Border Protection (CBP) trying to enter the United States without proper documentation, were placed in the expedited removal process, and were found to have a credible fear of persecution or torture by an Asylum Officer.
Immigration Judges hear defensive asylum cases in adversarial (courtroom-like) proceedings. The Judge will hear arguments from both of the following parties:
- The individual (and his or her attorney, if represented);
- The US Government, which is represented by an attorney from Immigration and Customs Enforcement (ICE).
The Immigration Judge then decides whether 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 order the individual to be removed from the United States. The Immigration Judge’s decision can be appealed by either party.
Asylum, once granted, brings various benefits i.e. authorization of work, issuance of social security card and eligibility for the Green Card (permanent residence). An asylee may also travel outside the US subject to prior permission to do so, by obtaining a refugee travel document.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.
