Immigration Law For Asylum Seekers In The United States

People who have fled their native countries because of fear of violence, persecution, or other dangers to their safety may receive asylum as a form of protection. Individuals who have applied for asylum status while looking for safety in another nation are known as asylum seekers.

Applying for asylum can be complicated depending on the nation where someone is looking for protection. For instance, requesting asylum in the United States entails several steps and is under federal immigration law.

What Is Asylum?

According to the 1951 Refugee Convention and 1967 Protocol of the United Nations, a refugee is a person who cannot or is unwilling to return to their country of origin and is unable to get protection in their homeland because of past persecution or a fear of persecution on account of race, nationality, religion, or political opinion. As a result, the U.S. Congress included the term asylum into American immigration law in the Refugee Act of 1980.

Since asylum is a discretionary status, some people may not receive it, although they fit the refugee criteria. If required, those people receive protection from harm through a backup kind of protection called withholding of removal. The person granted withholding of removal can legally stay and work in the United States and receives protection from being returned to their home country.

The law requires the United States to offer protection to persons who meet the criteria for refugees because of U.S. immigration law and since it is a signatory to the 1967 Protocol. According to the Refugee Act, one can apply for refugee status overseas as a resettled refugee or domestically as an asylum seeker.

How Does Asylum Help People Flee Persecution?

A person granted asylum in the U.S. has protection from being sent back to their country of origin, can work in the U.S., apply for a Social Security card and permission to travel abroad, and can file a petition to bring family members to the country. Additionally, asylees could qualify for specific government initiatives like Medicaid or Refugee Medical Assistance.

Moreover, an asylee may apply for legal permanent resident status after a year. However, these individuals have to wait four years before applying for citizenship.

How To Apply For Asylum In The United States?

You can apply for asylum in three ways.

Affirmative Asylum

Affirmative asylum is for individuals who are not in removal proceedings. However, suppose the officer does not grant you asylum, and you do not have a lawful immigration status. In this case, they may refer you to the immigration court for removal proceedings to renew your request through a defensive approach and appear before an immigration judge. 

Defensive Asylum

Unlike affirmative asylum, defensive asylum is for individuals undergoing removal proceedings. You may defensively apply for asylum by filing your application with an immigration judge at the EOIR in the Department of Justice. It means asylum will apply as a defense against your removal from the United States. 

However, unlike the criminal court system, EOIR will not provide appointed counsel. Therefore, hiring a competent immigration lawyer to defend your case would be wise.

An asylum seeker must prove that they meet the definition of a refugee in the United States. Additionally, the individual must demonstrate that they suffered persecution or have a reasonable fear of persecution in their country of origin. Therefore, testimony as the asylum seeker will be critical to one’s asylum determination.

Some things prevent people from getting asylum. With few exceptions, for instance, those who fail to request asylum within a year of entering the United States will not be eligible for it. Similar restrictions apply to applicants the government determines to be a threat to the country, who have committed a severe crime, or who have persecuted others.

Is There A Deadline For Applications?

Generally, asylum seekers must apply within one year of their arrival in the United States. However, some applicants, whether they’re undergoing removal proceedings or not, may encounter obstacles to meeting the one-year deadline. 

Some face traumatic consequences from detention or travel to the United States and may not know that this deadline exists. Additionally, those who know about the deadline may encounter systematic hindrances, like backlogs, making it challenging to file their application promptly. 

However, those under the expedited asylum process who pass an interview on credible fear is considered asylum applicant. It means their circumstance automatically satisfy the one-year filing deadline.

Credible Fear

Agents should refer individuals in expedited removal proceedings who fear torture, persecution, or returning to their home county and wish to apply for asylum in the United States for a credible fear screening interview. 

If the interviewer determines the asylum seeker’s credible fear, it means the individual has a significant possibility of establishing their eligibility for asylum in the United States. What happens after the interview depends on whether officials place them into the new expedited asylum process.

After the screening interview, officials will refer those under the new process back to USCIS for an asylum merits interview. At this interview, the officer will determine whether or not to grant the person asylum. The process will be complete once they approve the request. However, if the individual does not qualify, USCIS will refer them to an immigration court.

On the other hand, if the asylum officer determines the individual does not have a credible fear, they can order the person’s removal. However, the asylum-seeking individual may appeal their case by pursuing a truncated review process before a judge.

If the immigration judge overturns the official’s negative credible fear finding, they could place the individual in further removal proceedings through which they can seek protection from removal, including asylum. However, if the judge agrees with the asylum official on the unfavorable ruling, they may order the individual’s removal from the country.

Reasonable Fear

Individuals unlawfully re-entering the United States after a prior removal order and non-citizens convicted of crimes will undergo a different expedited removal process—reinstatement of removal.

Given this, asylum seekers in the reinstatement of removal proceedings may afford a reasonable fear interview with an asylum officer. Additionally, the individual must demonstrate the reasonable possibility that they will face torture or persecution based on religion, race, politics, or nationality.

Reasonable fear is higher than credible fear as a standard, although both evaluate the likelihood of an individual’s torture or persecution if removed. The asylum officer will refer the individual to immigration court if they determine reasonable fear. Because of this, the individual may establish their eligibility for withholding of removal. 

However, although withholding of removal is similar to asylum, some of its requirements are more complex, and the relief it provides is narrower. Additionally, it does not offer a route to lawful permanent residence in the United States.

If the officer determines the individual does not have reasonable fear, the person may appeal to an immigration judge. If the judge upholds the unfavorable ruling, they will return the individual to immigration enforcement officers for removal. On the other hand, if the judge overturns this ruling, they can place the individual in removal proceedings through.

What Happens To Asylum Seekers At The U.S. Border?

The reasonable and credible fear screening processes available to asylum seekers in expedited removal help ensure that the U.S. does not violate domestic and international laws by returning people to their home countries where their lives are at risk.

In some cases, if the government cannot hold the person in detention for a screening interview, officials will release them directly at the border. Generally, these individuals receive a notice to appear in court, where they will go through the defensive asylum process.

How Long Does The Process Take?

Generally, the asylum process in the United States can take years to conclude. However, in some situations, individuals may file their application or pass screening interviews and receive a hearing or interview schedule years ahead. This lengthy wait time is primarily due to backlogs, some applicants’ particular circumstances, and seasonal restrictions.

Let Lincoln-Goldfinch Law Represent You

The asylum application process in the United States can be complex and entail various steps and factors. Therefore, it is advantageous for anyone applying for asylum to know the rules and processes involved and seek counsel from an immigration lawyer. Asylum applicants can navigate the procedure and look for the protection they require with the aid of an experienced immigration lawyer.

Your immigration attorney can fill out and file your petition with the U.S. government on your behalf. In addition, they can answer your questions every step of the process, helping you file for a petition to legally stay or work in the United States while your application is pending. They can also check on the status of your case, so you know where you stand.

With several, sometimes confusing, immigration regulations and laws, processes can be overwhelming and challenging for anyone without experience. However, an experienced immigration attorney at Lincoln-Goldfinch Law can help you know what to expect and what to do when seeking asylum in the United States.

Lincoln-Goldfinch Law will protect and uphold your rights and assist with other concerns that may arise during your application process. Additionally, they will explain how your circumstance, interview answers, and other necessary documents work together to help you prepare your case more effectively.

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