SUBSTANTIVE REQUIREMENTS
Asylum may be granted to people seeking protection in the United States because they have suffered persecution or fear that they will suffer persecution in the future due to:
Race
Religion
Nationality
Membership in a particular social group
Political opinion.
There are certain bars from a grant of asylum, including participation in terrorist activity, conviction of a serious crime, danger to the security of the United States, firm resettlement in another country, participation in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion. Please consult an attorney if you think these bars apply to you.
TWO PROCEDURES TO APPLY FOR ASYLUM
Affirmative asylum – for individuals who are not in removal proceedings.
A person may apply for asylum if he has been physically present in the United States for less than one year from the date of the last arrival, unless changed circumstances materially affect his eligibility to apply for asylum.
Defensive asylum – for individuals who are already in removal proceedings.
Applying for asylum at the Mexican border is a variation of a defensive asylum, which has been recently gaining its popularity amongst others due to outrageous backlogs in the visa issuing process of the United States Citizenship and Immigration Service (USCIS).
AFFIRMATIVE ASYLUM
A person may file a Form I-589, Application for Asylum and Withholding of Removal (hereinafter – Asylum Application), with the USCIS within the first year of her stay in the United States calculated as of the date of the last arrival.
It does not matter, whether the person’s visa is valid at the time of filing the Asylum Application or already expired. It is important, however, that removal proceedings have not yet been initiated.
A person may include her spouse and unmarried children under 21 on the Asylum Application if they are physically present in the United States.
After an Asylum Application is submitted, USCIS will send an applicant a receipt notice.
USCIS will invite an applicant to a biometric services appointment, where the fingerprints will be collected and a photograph taken.
An asylum seeker may apply for employment authorization 365 calendar days after he filed his Asylum Application. It generally takes not less than six months to get the employment authorization document after filing a petition for it.
After the biometrics appointment, a person will receive an asylum interview notice. Due to heavy backlogs in the U.S. immigration system, an asylum interview may be scheduled several years after the Asylum Application was filed. It is highly not recommended to try rescheduling the interview or miss it.
An applicant must present his whole case and all evidence, including originals of the documents, at the interview.
An officer does not issue a decision on the day of the interview. It might take several weeks before the decision is issued.
There are several types of decisions that an asylum officer can issue:
Grant of asylum. If the asylum has been granted, the asylum seeker may lawfully stay in the United States and apply for a green card one year after the grant of asylum. He is authorized to work in the United States immediately after the grant of asylum.
Referral to an immigration court. If an asylum officer issues a referral notice, it means that the asylum officer was unable to approve the Asylum Application and the case will be further adjudicated in an immigration court. The asylum seeker will also receive a notice to appear in an immigration court. A referral notice does NOT mean that the asylum case was denied and the asylum seeker will be deported. It means that an immigration judge will decide on the asylum case. The immigration judge is not bound by the findings of USCIS and will decide the case independently. There is no need to refile an Asylum Application.
Sending application to an Immigration Court. If an asylum seeker has previously been issued a notice to appear in an immigration court, USCIS will likely send an Asylum Application to an Immigration Court.
Notice of intent to deny. If an asylum seeker still has a valid status in the United States, but the asylum officer found a person ineligible for asylum, he will issue a Notice of intent to deny stating the reasons why an asylum seeker is not eligible for asylum. The asylum seeker will have 16 days to explain in writing why the claim should be granted or to submit new evidence.
Final denial. If an asylum seeker did not timely respond to the Notice of intent to deny or the response failed to overcome the reasons for denial stated in the Notice of intent to deny, the Asylum Application will be denied. An asylum seeker may reapply for asylum later, however, he will have to demonstrate changed circumstances.
ASYLUM AT THE MEXICAN BORDER
At the border / At the detention center
A person presents himself at one of the ports of entry at the United States – Mexican border and expresses a fear of returning to his home country due to past or future persecution.
An officer may let the person in the country or stop him at the border justifying his decision by one of the recent policies effectively limiting the right of individuals to seek asylum at the border. The major of them is a so-called Title 42. It permits officials to prohibit the introduction into the United States of individuals when there is a danger of the introduction of a communicable disease into the country. This Trump policy has been heavily misused in the last couple of years to expel immigrants back to Mexico. It remains in force, despite heavy criticism by the media and civil rights organizations. There is no right to appeal the decision based on Title 42. According to the recent news, Title 42 policy will end on May 23, 2022.
If the asylum seeker is let in the country, he will be put in one of the detention centers and an asylum officer will conduct a credible fear interview to collect information about the person’s fear of persecution. If needed, an interpreter must be provided.
The decision of an asylum officer with the finding of no fear can be reviewed by an Immigration Judge upon the request of the asylum seeker. Credible fear review is a limited proceeding, which must be conducted within 7 days as of the date of the asylum officer’s decision on the interview. The alien may consult a person of his choice before the review. However, whether an attorney may be present at the review, lies solely in the discretion of the immigration judge.
If an Immigration Judge denies the credible fear review, the alien will be deported.
If the credible fear interview or the credible fear review is successful for the alien, the alien will be issued a notice to appear, which signifies the commencement of removal proceedings against him.
The asylum seeker remains detained during the above steps of the asylum process. However, he may request the release from detention after passing the credible fear interview/review.
To be granted parole (release from detention), an asylum seeker must demonstrate the following:
he has sufficient identity documents
he provided information about a friend or a family member with whom he will reside during the asylum process and who will cover the asylum seeker’s living costs and that person confirmed this in the phone conversation with the asylum officer.
he is not a flight risk (need to demonstrate the likelihood that the alien will come to court for his hearings, family ties in the United States, etc.)
he is not at danger to the community (no criminal record, no mental illness that can pose threat to the community, no prior violations of the United States immigration laws, etc.).
If a parole request is denied, a person may still ask the officer to reconsider his decision.
The release on parole does not mean the person has asylum. It just means that he will fight the case from outside of detention.
In the removal proceedings
The Notice to Appear, which is generally handed to the asylum seeker by an officer in a detention center, contains the date of the first hearing in the alien’s removal proceedings, as well as indicates the court, which will adjudicate the case.
If the alien is released on parole, the alien must make sure that the case is transferred to the court, which has jurisdiction over his new residence.
The first hearing in court the alien will have is called a Master Calendar Hearing and it is organizational in nature. The substance of the asylum claim is not adjudicated on it.
Asylum is a defense to removal. As such, an Asylum Application should be filed with the court, which has jurisdiction over the alien’s asylum case. This can be done before the Master Calendar Hearing or at the Master Calendar Hearing itself.
At the Master Calendar Hearing, the court gives the alien a notice that includes the date of the Individual Hearing. Because of heavy backlogs in Immigration Court system, the date of an Individual Hearing may be a year or more after the Master Calendar Hearing.
An asylum seeker may first apply for employment authorization 365 calendar days after he filed his Asylum Application. It generally takes not less than six months to get the employment authorization document after filing a petition for it.
The substance of the asylum defense is adjudicated on the Individual Hearing. The Immigration Judge might issue a decision at the end of the hearing, or she may take several days or weeks.
If the asylum has been granted, the asylum seeker may lawfully stay in the United States and apply for a green card one year after the grant of asylum. He is authorized to work in the United States immediately after the grant of asylum.
If the Immigration Judge denied asylum, the alien will have thirty days to appeal the decision. The alien may not be deported while the appeal is pending.
Disclaimer: The information provided in this article does not and is not intended to constitute legal advice. Furthermore, this article is not guaranteed to be complete or remain up-to-date with the passage of time, nor intended to create – and receipt of it does not constitute – a lawyer-client relationship. Anyone viewing this information should not act upon it without consulting a licensed attorney.
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