Asylum is a remedy that offers protection to individuals who have been persecuted or have a credible fear of persecution if they return to their home county. The persecution must be based on race, religion, nationality, membership in a particular social group or political opinion.
There are two distinct categories that those seeking asylum may file under, and these categories are dependent on whether or not one is in deportation proceedings. If you are not in deportation proceedings, you are eligible to file an Affirmative Asylum application upon entry into the United States. The process of Affirmative Asylum is outlined below:
- Apply within one year of your last arrival to the United States (barring an exception)
- USCIS performs fingerprints and runs a background/security check
- Applicant receives an interview notice to be conducted by an Asylum Officer in a location dependent on where you live
- Applicant attends interview with Asylum Officer
- Asylum Officer determines eligibility
- Applicant receives a decision (the whole process typically takes approximately 60 days, unless other circumstances arise)
If an applicant wishes to seek asylum and is currently in deportation proceedings before an immigration judge, the applicant must apply for Defensive Asylum, outlined below:
- Defensive Asylum applicants must be in removal proceedings in immigration court with the Executive Office for Immigration Review (EOIR)
- There are a variety of ways an individual becomes placed in asylum proceedings including:
- Referred to Immigration Judge after having been determined ineligible for affirmative asylum
- Apprehended in the U.S. or at a U.S. port of entry; apprehended by Customs and Border Protection in an attempt to enter the United States without proper documentation and then found to have a credible fear of persecution or torture by an Asylum Officer.
- Once placed into asylum proceedings, an Immigration Judge determines whether the applicant is eligible for asylum in a courtroom setting
- If the Immigration Judge grants an applicant asylum, the individual is eligible to apply for lawful permanent resident status after being physically present in the United States for a period of one year after the date one was granted asylum. Other immediate benefits include an Employment Authorization Document (EAD), unrestricted Social Security card, cash and medical assistance, employment assistance, and a Refugee Travel Document.
There is no numerical cap on the number of individuals who may be granted asylum each year, and there is no specified list of countries of origin. Anyone with past persecution based on the above categories, or credible fear of future persecution based on the above categories, may apply. Dependents of the applicant may also be eligible for a grant of asylum. Individuals who have a pending asylum application with the US Citizenship and Immigration Service, may also be eligible for work authorization.
If a person missed the filing deadline, they may still qualify for an alternative form of relief such as Withholding of Removal or Convention Against Torture (CAT).
Both Withholding or Removal and the Convention Against Torture prevents the United States government from returning you to a country where your life and freedoms would be threatened abased on racial, religious, national or political grounds or because you belong to a particular social group. Furthermore, the Convention Against Torture designation will only be granted if there is reasonable evidence and reason to believe that it is more likely than not that you would be tortured if returned to your country.