What is asylum? New regulations to consider. By: Yahima Morejon, Esq.
Updated: Feb 29
One of the most touched upon immigration law subjects in recent memory has been asylum. But really, what is asylum?
Asylum is a type of protection or shield offered by the government of the United States to aliens/foreign nationals that have suffered some type of persecution in their home country.
A common misconception is that the protections provided by asylum are only given to those aliens who are victims of political persecution. It does not work like that. In actuality, the majority of asylum applications are indeed presented by aliens that have suffered persecution in their home country due to their political opposition or differences, but asylum is also contemplated in cases involving persecution on account of an alien’s religion, race, nationality, or membership in a particular social group (this last category is often utilized by individuals that have been persecuted due to their sexual identity o orientation).
Asylum can be applied for within or outside of the United States.
If you find yourself in the U.S.A., then you apply for asylum with USCIS (United States Citizenship and Immigration Services). The asylum application is submitted using a standard form (I-589) with the corresponding documentary evidence that demonstrates the persecution the alien has suffered in his home country. The application should be filed no later than within one year of the alien’s arrival to/entry into the United States. The application may be filed after one year, but the alien will have to establish that the late filing was the result of certain exceptional circumstances outside of the alien’s control.
Asylum can also be applied for at any port/point of entry into the United States. If you arrive at one of these ports along the border, you can apply for asylum concurrently with your arrival. Nonetheless, if you possess a valid entry visa, it is recommendable that you first enter the United States and apply for asylum afterwards.
If you do not have a valid visa to enter the U.S.A., then the asylum process and application should begin at a port of entry, typically, along the borders. Once at a port of entry, you’ll be interviewed by an immigration official, typically, an officer of CBP (Customs and Border Protection). This has come to be known as the credible fear interview. The purpose of this interview is to create or establish the foundation of your asylum case. At this interview, you should explain to the officer the reasons why you fear returning to your country of origin, any specific occurrences of actions that were taken against you, the details of the persecution you suffered, and any other relevant details that will later form the foundation of your asylum application. Although the credible fear interview should be commenced within three days of your arrival to the port of entry, currently, due to the high volume of aliens arriving at ports of entry and asylum cases, the wait time is much longer. At the conclusion of the interview, the immigration officer will decide whether you’ve established a credible fear of persecution.
If the officer believes that you do have a credible fear, then you will have the opportunity to present your asylum case in EOIR (Executive Office of Immigration Review) immigration court and have a judge decide your case on the merits. Keep in mind that immigration officers will not, at any moment, help you with your asylum case or file documents on your behalf. You, as the arriving alien and asylum applicant, are responsible for presenting your asylum application and all substantiating evidence.
If the officer does not believe that you have a credible fear of persecution, then you are also afforded the opportunity to have your asylum claims adjudicated by a judge in immigration court. For the judge to adjudicate your claims, you will have to file the corresponding application or petition for relief. If not done correctly, then you may be deported and barred or prohibited from re-entering the United States for a period of at least five (5) years. Once a hearing before an immigration judge is requested, the hearing should occur within seven days. At this hearing, you will once again have to explain your asylum claims to the judge, describe the persecution suffered, and details the reasons you fear returning to your country. Should the judge find your fear credible, then you will be able to file a defensive asylum application. If the judge does not find you to be credible or finds that your claims are irrelevant to asylum, then he will issue an order of removal/deportation with a penalty on re-entry for a period of at least five years. The hearing(s) with the immigration judge may be held in-person or by telephone.
Once the credible fear interview or hearing has occurred, while you await a final hearing with an immigration judge, you could be held in detention or released on “parole” into the United States. There are different types of paroles. You could be paroled subject to money or property bond, paroled on your own recognizance, or paroled subject to other conditions or restrictions. You may be paroled and released to family members residing within the United States.
Prior to your final hearing where the immigration judge will decide your case, an asylum applicant should present to the court not only the asylum application, but also documentary evidence of the persecution suffered. An asylum application must be fully substantiated with relevant evidence. Accordingly, if you are contemplating filing an asylum application, it is advisable that the prospective applicant begin to gather and organize this evidence. The more evidence you have, the better your asylum case will be.
What benefits are granted to asylum applicants?
If your application for asylum is approved, you could apply to become a permanent resident one year after the date of the approval. The applicant may also apply for work authorization if the asylum application has been pending for more than 150 days and a final decision has not been made on the case. Successful asylum applicants may also petition for their spouse and children under 21 years of age to accompany them to reside in the United States. This should be done within two years of the date of the approval of the asylum application.
Asylum applications are one of the most complex applications filed with USCIS. Most aliens applying for asylum will need an experience and qualified attorney to guide them through the whole process. Trump’s administration has reduced the number of eligibility categories for asylum applicants. At the same time, the administration’s zero tolerance policy is impeding or prohibiting many potential asylum applicants arriving at the border from applying for asylum and/or placing them in expedited removal proceedings. One new policy/regulation, established by the current administration and implemented in 2018, is that priority is being given to new asylum cases over existing cases. Another policy obligates aliens transiting through third countries on route to the U.S.A. to request asylum in those countries and, in some cases, have those asylum claims adjudicated in those other countries before applying for asylum in the United States.
If you think that you qualify for asylum, don’t waste any more time and contact an attorney today. An attorney can help you prepare and organize a successful asylum application in an expedited and responsible manner. Call us today for a free consultation. Remember, at Y. Morejon Attorney, P.A. your problem, is our problem.
Yahima Morejon, Esq.