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Immigration Law Blog

Exploring the ins and outs of immigration.

The Asylum Series: Part 1 of 3

asyum


As a service to our readers, we will be sharing information on U.S. asylum law over the next 3 weeks. In part 1, we will give an overview of what it means to ask and receive asylum in the U.S. We will also highlight recent decisions on real cases. In part 2, we’ll explain why an asylum approval is so difficult to get. Finally, in part 3 we’ll explain the long waiting times for a decision and how some people can receive work authorization while they wait.  In this way, we hope to set expectations about what is and isn’t possible when seeking protection for yourself or loved ones.

How Does Getting Asylum Help You?

Asylum is the protection given by one country to someone who has left their native country. This protection is usually given because that person’s life is in danger in your home country. If the U.S. government grants you asylum, a whole new life can begin for you in the U.S. This life will potentially end your fear of death, pain, or threat of detention by your government. It can also mean that you should be able to reunite with certain loved ones left behind in your country. In short, when the U.S. approves someone for asylum, it is life changing. If you have been approved for asylum, you are called an “asylee.” This different from a “refugee.” You can read more about the differences between asylees and refugees here.

The main points to understand about being approved for asylum in the U.S. are the following:

  • If approved, you can live in the U.S. even if your original visa expired or you never had a visa in the first place.
  • You can legally work and get a driver’s license.
  • If you are married or have a child, your family may be eligible to come to the U.S. or legalize their status in the U.S.
  • After 1 year, an asylee can ask permanent residence (“a green card.”) This step is necessary for most people in order to apply for U.S. citizenship.
  • It’s important to know that you can lose your asylee status and be deported if you commit certain criminal and national security violations.

With these benefits, there is one major thing you cannot do: travel back to your home country. The logic is simple. If you said you were afraid to return to your home country, then you should not be willing to return so easily. Returning to your home country could cause the U.S. to reconsider your asylum approval. We recommend speaking to an attorney if there is a situation that requires a return to your country. You may travel to other countries using a “refugee travel document.” You need to apply for this document before leaving the U.S. It is not recommended that you continue to use your native country’s passport once you are an asylee.

How Do You Ask for Asylum?

There are two main ways. You may ask it “affirmatively” or “defensively.”  When we say “affirmatively” we mean the following situations:

  • You are in the U.S. legally and realize that returning to your country puts your life in danger. Even though you are in valid immigration status, you file an asylum application with the U.S. Citizenship & Immigration Services (“USCIS”). This is so that when your visa expires, you can stay in the U.S. or
  • You are in the U.S. and you are not here legally. This could be because your visa expired recently or a long-time ago. It could also be because you entered without permission. Either way, if you are physically in the U.S. you can submit an asylum application to USCIS.

In part 2, we will explain why sometimes someone cannot apply for asylum, even if they are in the U.S. However, the general rule is that if you are in the U.S. you can submit an asylum application. The application goes to USCIS if it is an affirmative application. You will eventually see an officer from the Asylum Office. They will interview you and make the decision on your case. You can find the application, instructions, and mailing address here. However, because asylum is complicated, we recommend talking to an attorney first. Especially if you are not in legal status.

When we say “defensively,” these are the most common situations:

  • You come to the U.S. border and surrender to Customs & Border Patrol (“CBP”). You ask for asylum. Usually, CBP will put you in detention until an Asylum Officer can interview you. If they decide you have a “credible fear,” you can be released and you will submit an asylum application to USCIS. You will also have to see an Immigration Judge. The Immigration Judge makes the decision on your case and not the Asylum Office.
  • You have received a Notice to Appear. This paper looks like this. It starts a deportation or “removal” case against you. In this process, you have to go to the Immigration Court and a Judge decides if you are eligible to stay in the U.S. If an Immigration Judge approves your defensive asylum application, you will be allowed to stay in the U.S. At the end of the case, you will receive a final order granting you asylum.

Things in Common

Under both situations, only someone in the U.S. can apply for asylum. If you or a loved one is outside of the U.S, then they are not eligible for protection under our asylum laws. Also, in both situations the Asylum Office under USCIS will receive the application. But if it is a defensive application, the Immigration Judge makes the final decision. If the Asylum Office denies your application, most people will get a second chance by getting a Notice to Appear and seeing an Immigration Judge.

Recent Asylum Decisions

In Part 2, we will cover the requirements for getting asylum. To give you an idea of what’s in store, we are summarizing recent decisions on real life asylum cases.

  • Example #1 : Mr. Orellana‐Arias is a citizen of El Salvador. He applied for asylum defensively. He asked for protection because he was against the gangs in his country. Mr. Orellana-Arias testified that gang members had assaulted him and made him pay money. The police could not protect him. He also explained that gang members had talked to his wife, still in El Salvador, to ask where he was. The Immigration Judge said it appeared Mr. Orellana-Arias was telling the truth. However, he said what he lived through was “mere harassment” and not persecution.

 

  • Example #2: Mr. Baltti is a citizen of Ethiopia and a former government official. He said he saw two government sponsored massacres of people in Ethiopia. At the time, he worked as a government official. He spoke out against the actions of his government. When it was clear he was going to lose his job, he entered the U.S. on a visitor visa and applied for asylum. He feared he would be harmed by the Ethiopian government.The Courts denied the application. The opinion was that since more than 10 years had passed since the massacre, Baltti did not have a  “well-founded fear of future persecution.

 

  • Example # 3: Mr. Ortiz was a journalist in Mexican. He fled Mexico after unknown people threatened him. Members of his family were also murdered. He testified that he believes this happened because he reported on local police misconduct. Mr. Ortiz won asylum based on these facts.

 

  • Example # 4: Ms. Rivera fled her home country of El Salvador because a local gang threatened her and her family because her brother was in a rival gang. The Court found that she did have a well-founded fear of persecution and approved her asylum case.

As you can see, the outcomes in asylum cases are not always what you think they should be. Sometimes, a strong case is not approved.

Conclusion

Asylum is one of the more complicated areas of immigration law. It is also high stakes as it sometimes means life or death for the applicant and their family. If you or a loved one is afraid to return to your country, please take the time to learn about the process. Having knowledge of the process and requirements will help you prepare a stronger application with or without an attorney.