Asylum allows someone who is classified as a “refugee” to receive asylee status in the United States.
The United States may grant asylum to a person who qualifies as a “refugee” as defined under immigration law. A “refugee” is a person who suffered persecution in the past, or has a well-founded fear of future persecution on the basis of his or her race, religion, nationality, membership in a particular social group, or political opinion. A “refugee” must be in the United States and unable or unwilling to seek protection from his or her home country. Asylum is discretionary, which means that the federal government does not have to grant asylum even to individuals who meet the eligibility requirements.
Bars to Asylum
A foreign national cannot receive asylum if (1) he or she participated or was involved in the persecution of others; (2) he or she has been convicted of a particularly serious crime; (3) there are serious reasons for believing the foreign national committed a serious nonpolitical crime outside the United States prior to arriving in the United States; (4) there are reasonable grounds for regarding the foreign national as a danger to the security of the United States; or (5) he or she firmly resettled in another country before arriving in the United States. An aggravated felony is deemed a “particularly serious crime” for purposes of asylum in the United States.
A foreign national who has an aggravated felony conviction may, however, still be eligible for withholding of removal or Article III relief under the United Nations Convention Against Torture.
Under the Circumvention of Lawful Pathways rule, noncitizens are presumed ineligible for asylum if they have crossed the southwest border or the adjacent costal ones without authorization after traveling through a third country and without having: availed themselves of an existing lawful process, presented themselves at a port of entry at a pre-schedule time, or been denied asylum on a third country through which they traveled.
This ineligibility presumption may be rebutted under the following exceptionally compelling circumstances at the time of their unauthorized entry: faced an acute medical emergency, faced extreme threat to their life or safety; or were a victim of severe form of trafficking.
Noncitizens will be removed if they are subject to the rebuttable presumption but do not rebut and fail to establish a reasonable fear of persecution or torture.
One-Year Filing Deadline
A foreign national must apply for asylum within 1 year of the last arrival to the United States. If more than one year has passed since the last arrival, a foreign national must establish an exception to the filing deadline by showing either changed or extraordinary circumstances.
Changes circumstances include changes in the country conditions, changes in the law, or changes in the applicant’s personal circumstances. Extraordinary circumstances refer to events or factors that prevented timely filing, such as illness, death of a family member, ineffective assistance of counsel, being a minor, or being in lawful status. Even if the applicant proves changed or extraordinary circumstances, the filing deadline will not be excused unless the applicant shows that he or she filed within a reasonable time of the changed or extraordinary circumstance.
An affirmative asylum application is filed for someone who is not in removal proceedings. The application is filed with the relevant USCIS office. The applicant will be scheduled for an interview with an Asylum Officer of USCIS. If the Asylum Office does not grant the application, it refers the case to the immigration court. An applicant may apply for employment authorization with USCIS 150 days after applying for asylum if a decision has not yet been made on the application, although work authorization will not actually be issued until 180 days have passed.
A defensive asylum application is filed for someone who is in removal proceedings before the immigration court and where asylum is sought as a relief (or defense) to removal. Both affirmative and defensive applications use the same form, which is Form I-589.
There is also a “credible fear” process for individuals apprehended at the U.S. border or port of entry who express fear of persecution.
Please contact Wilson Law Group to evaluate your particular situation in a consultation with one of our experienced immigration attorneys.
Schedule A Free Consultation With An Asylum Attorney
Our immigration and asylum lawyers at Wilson Law Group offer free initial consultations. Please contact us by calling 612-430-8022 or sending an email through our website to schedule your free appointment. We look forward to telling you more about how we can help you with your case.