asylum

Immigrants and their families may find safety and security in the U.S. through a grant of asylum. Each year, thousands of people arriving at our border or already in the United States apply for asylum, or protection from persecution.

Asylum seekers must navigate a difficult and complex process that can involve multiple government agencies.

Those granted asylum can apply to live in the United States permanently and gain a path to citizenship and can also apply for their spouse and children to join them in the United States. Through U.S. immigration law, the United States has legal obligations to provide protection to those who qualify as refugees. The laws have established two paths to obtain refugee status—either from abroad as a resettled refugee or in the United States as an ASYLUM seeker.

How Does Asylum Help People Fleeing Persecution?

A person granted asylum is protected from being returned to his or her home country, is authorized to work in the United States, may apply for a Social Security card, may request permission to travel overseas, and can petition to bring family members to the United States. Asylees may also be eligible for certain government programs, such as Medicaid or Refugee Medical Assistance. After one year, an asylee may apply for lawful permanent resident status (i.e., a green card). Once the individual becomes a permanent resident, he or she must wait four years to apply for citizenship.

What Is the Asylum Application Process?

There are two primary ways in which a person may apply for asylum in the United States: the affirmative process and the defensive process. 

Affirmative Asylum: A person who is not in removal proceedings may affirmatively apply for asylum through U.S. Citizenship and Immigration Services (USCIS), a division of the Department of Homeland Security (DHS). If the USCIS asylum officer does not grant the asylum application and the applicant does not have a lawful immigration status, he or she is referred to the immigration court for removal proceedings, where he or she may renew the request for asylum through the defensive process and appear before an Immigration Judge. 

Defensive Asylum: A person who is in removal proceedings may apply for asylum defensively by filing the application with an Immigration Judge at the Executive Office for Immigration Review (EOIR) in the Department of Justice. In other words, asylum is applied for as a defense against removal from the U.S. Unlike the criminal court system, EOIR does not provide appointed counsel for individuals in immigration court, even if they are unable to retain an attorney on their own. Asylum seekers who arrive at a U.S. port of entry or enter the United States without inspection generally must apply through the defensive asylum process. 

Both application processes require the asylum seeker to be physically present in the United States. With or without counsel, an asylum seeker has the burden of proving that he or she meets the definition of a refugee. Asylum seekers often provide substantial evidence throughout the affirmative and defensive processes demonstrating either past persecution or that they have a “well-founded fear” of future persecution in their home country. Certain factors also bar individuals from asylum. Individuals who fail to apply for asylum within one year of entering the United States may be barred from receiving asylum, unless they demonstrate an exception to the one year filing applies.. Similarly, applicants who are found to pose a danger to the United States may be barred from asylum.

Additionally, the individual’s own testimony is usually critical to his or her asylum determination. 

Is there a Deadline for Asylum Applications? 

An individual generally must apply for asylum within one year of their most recent arrival in the United States. Asylum seekers in both afirmative and defensive processes face many obstacles to meeting the one-year deadline. Some individuals face traumatic repercussions from their time in detention or journey to the United States and may never know that a deadline exists. Even those who are aware of the deadline encounter systemic barriers, such as lengthy backlogs, that can make it impossible to file their application in a timely manner. In many cases, missing the one-year deadline is the sole reason the government denies an asylum application. 

What Happens to Asylum Seekers Arriving at the U.S. Border? 

The majority of  noncitizens who were encountered by, or presented themselves to, a U.S. official at a port of entry or near the border are subjected to expedited removal, an accelerated process which authorizes DHS to perform rapid removal of certain individuals. To help ensure that the United States does not violate international and domestic laws by returning individuals to countries where their life or liberty may be at risk, the credible fear and reasonable fear screening processes are available to asylum seekers in expedited removal processes. Importantly, while the process described below is how asylum seekers should be processed under law, at times Customs and Border Protection (CBP) officers do not properly follow this process. Additionally, CBP officers sometimes subject asylum seekers to various new policies. Credible Fear Individuals who are placed in expedited removal proceedings and who tell a CBP official that they fear persecution, torture, or returning to their country or that they wish to apply for asylum should be referred for a credible fear screening interview conducted by an asylum officer. If the asylum officer determines that the asylum seeker has a credible fear of persecution or torture, it means that the person has proven that he or she has a “significant possibility” of establishing eligibility for asylum or other protection under the Convention Against Torture. The individual will then be referred to immigration court to proceed with the defensive asylum application process. If the asylum officer determines the person does not have a credible fear, the individual is ordered removed. Before removal, the individual may appeal the negative credible fear decision by pursuing a truncated review process before an Immigration Judge. If the Immigration Judge overturns a negative credible fear finding, the individual is placed in further removal proceedings through which the individual can seek protection from removal, including asylum. If the Immigration Judge upholds the negative finding by the asylum officer, the individual will be removed from the United States.

Reasonable Fear Individuals who re-enter the United States unlawfully after a prior removal order and noncitizens convicted of certain crimes are subject to a different expedited removal process called reinstatement of removal. To protect asylum seekers from summary removal before their asylum claim is heard, those in reinstatement of removal proceedings who express a fear of returning to their country are afforded a “reasonable fear” interview with an asylum officer. To demonstrate a reasonable fear, the individual must show that there is a “reasonable possibility” that he or she will be tortured in the country of removal or persecuted on the basis of race, religion, nationality, political opinion, or membership in a particular social group. While both credible and reasonable fear determinations evaluate the likelihood of an individual’s persecution or torture if removed, the reasonable fear standard is higher. If the asylum officer finds that the person has a reasonable fear of persecution or torture, he or she will be referred to immigration court. The person has the opportunity to prove to an Immigration Judge that he or she is eligible for "withholding of removal" or "deferral of removal"—protection from future persecution or torture. While withholding of removal is similar to asylum, some of the requirements are more difficult to meet and the relief it provides is narrower. Significantly, and unlike asylum, it does not provide a pathway to lawful permanent residence or citizenship.

Many changes have occurred recently to the Asylum Process at the Border Under “metering,” asylum seekers are told to wait in Mexico, usually placing their names on a list, until CBP officers determine that a given port of entry has capacity to process them. Through metering, asylum seekers are prevented from accessing the asylum process when they arrive at the U.S. border.

DHS also began implementing a series of new programs that have significantly altered the traditional credible and reasonable fear processes once an asylum seeker finally is able to access those processes.

The first of these programs, known as the Migrant Protection Protocols (MPP), forces asylum seekers to be sent back to Mexico, where they are required to wait for the date of their immigration court hearings held at four different U.S. locations across the border. Individuals put through MPP do not go through the credible fear or reasonable fear screening process, but instead are put directly into court proceedings which allows U.S. officials to send them back to Mexico to await their subsequent court hearings. Although MPP was struck down by the Ninth Circuit as a violation of law, the decision was put on hold by the Supreme Court and remains in the appeals process.

In July 2019, DHS issued a new rule banning asylum for all individuals who transited through a third country before arriving in the United States without having applied for asylum in that country. Under that rule, almost every person who arrived at the U.S. Mexico border for the first time after July 2019, is ineligible for asylum, unless they had been subject to metering prior to that date. Those who are subject to the rule are screened at the border under the heightened “reasonable fear” standard and may still seek withholding of removal or protection under the Convention Against Torture. This rule was also struck down by the Ninth Circuit, and that decision was also put on hold by the Supreme Court and remains in the appeals process.

In November 2019, DHS began implementing an “Asylum Cooperative Agreement” with Guatemala. Under this kind of agreement, which also is known as a “Safe Third Country” agreement, individuals seeking asylum in the United States are instead sent to a third country and required to seek asylum there. Individuals subject to these agreements may not seek asylum or any other protection, including withholding of removal, in the United States. A similar agreement with Honduras went into effect in May 2020. The legality of these agreements is currently under challenge.

In response to the COVID-19 (coronavirus) pandemic, the Centers for Disease Control issued an order suspending the “introduction” of persons who have been in “Coronavirus Impacted Areas.” Citing this authority, the Border Patrol began “expelling” individuals who arrive at the U.S. Mexico border without giving them the opportunity to seek asylum, even if they express a fear of persecution.

How Long Does the Asylum Process Take?

Overall, the asylum process can take years to conclude. In some cases, a person may file his or her application or pass a credible or reasonable fear screening and receive a hearing or interview date years in the future. The government does not estimate the time it will take to schedule an initial interview for these asylum applicants, though historically the delay could reach four years. The backlog in U.S. immigration courts recently reached an all-time high. Asylum seekers, and any family members waiting to join them, are left in limbo while their case is pending. The backlogs and delays can cause prolonged separation of refugee families, leave family members abroad in dangerous situations, and make it more difficult to retain pro bono counsel who are able to commit to legal services for an extended period of time for the duration of the asylum seeker’s case. Although asylum seekers may apply for work authorization, the uncertainty of their future impedes employment, education, and trauma recovery opportunities.

What Happens to Asylum Seekers While Their Application Is Processed

Asylum seekers include some of the most vulnerable members of society such as children, single mothers, victims of domestic violence or torture, and other individuals who have suffered persecution and trauma. While U.S. law provides arriving asylum seekers the right to remain in the United States while their claim for protection is pending, the government has argued that it has the right to detain such individuals, rather than release them into the community. Some courts have rejected this interpretation and held that asylum seekers meeting certain criteria have a right to a bond hearings. Advocates have challenged the practice of detaining asylum applicants without providing a meaningful opportunity to seek parole, including class-action suits that document the prolonged detention—sometimes lasting years—of individuals with credible fear awaiting adjudication of their claim for asylum. Detention exacerbates the challenges asylum seekers already face and can negatively impact a person’s asylum application. Children and families who are detained suffer mental and physical health problems, including depression, post-traumatic stress disorder, and frequent infections.

Why Hire AN EXPERIENCED ATTORNEY?

Asylum is one of the most complex immigration processes. The interviews, hearings and deadlines alone are difficult and daunting. Studies have found that detained individuals in removal proceedings are nearly five times less likely to secure legal counsel than those not in detention. These disparities can significantly affect an individual's outcome. The Law Office of Meri S. Ponist, P.C. has represneted thousands of asylum cases with successful outcomes.