The Process of Filing for Asylum in the United States

Every year, thousands of non-citizens arriving at our border or already in the United States apply for asylum, or protection from persecution. The asylum seeking process is a complex and difficult process that could involve multiple government agencies. Those granted asylum have the opportunity to apply to live in the United States permanently, receive certain benefits, and be reunited with their family members.

An overview of the asylum system in the United States is provided in the fact sheet below, including how asylum is defined, eligibility requirements, and the application process.

What Is Asylum?
Asylum is a protection granted to foreign nationals already in the United States or at the border who meet the international law definition of a “refugee.” This is based on the United Nations 1951 Convention and 1967 Protocol that defines a refugee as a person who is unable or unwilling to return to his or her home country, and / or cannot obtain protection in that country, due to past persecution or a well-founded fear of being persecuted in the future “on account of race, religion, nationality, membership in a particular social group, or political opinion.” This definition was incorporated into the US Immigration law by Congress in the Refugee Act of 1980.

What Merits does a Person granted Asylum Status Get?
An asylee—or a person granted asylum—is protected from being returned to his or her home country, is authorized to work in the United States, may apply for a Social Security card, may request permission to travel overseas, and can petition to bring family members to the United States. Asylees are eligible for certain healthcare benefits, such as Medicaid or Refugee Medical Assistance.
After one year, an asylee can apply for permanent resident status (i.e., a green card). Once the individual becomes a permanent resident, he or she has to wait four years to apply for citizenship.

Types of Asylum Status
The two ways of obtaining asylum in the United States are through the affirmative process and defensive process.

Affirmative Asylum Processing With USCIS
To obtain asylum through the affirmative asylum process one must be physically present in the United States. You apply for asylum status regardless of how you arrived in the United States or your current immigration status.
However, you must apply for asylum within one year of the date of their last arrival in the United States, unless you can show:
• Changed circumstances that materially affect your eligibility for asylum or extraordinary circumstances relating to the delay in filing
• You filed within a reasonable amount of time given those circumstances.
You may apply for affirmative asylum by submitting Form I-589, Application for Asylum and for Withholding of Removal, to USCIS.

If your case is not approved and you do not have a legal immigration status, you will be issued with a Form I-862, Notice to Appear, and forward (or refer) your case to an Immigration Judge at the Executive Office for Immigration Review (EOIR). The Immigration Judge conducts a hearing of the case. This means that the judge conducts a new hearing and issues a decision that is independent of the decision made by USCIS. If they do not have jurisdiction over your case, the Asylum Office will issue an I-863, Notice of Referral to Immigration Judge, for an asylum-only hearing.
Affirmative asylum applicants are rarely detained by U.S. Immigration and Customs Enforcement (ICE). One can live in the United States while your application is being processed by USCIS. If one is found ineligible, you can remain in the United States while your application is pending with the Immigration Judge. Most asylum applicants are not authorized to work during this period.

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Defensive Asylum Processing with EOIR
A defensive application for asylum occurs when one requests asylum as a defense against removal from the U.S. For asylum processing to be defensive, one must be in removal proceedings in immigration court with the Executive Office for Immigration Review (EOIR).

Individuals are generally placed into defensive asylum processing in one of two ways: •
• They are referred to an Immigration Judge by USCIS after they have been determined to be ineligible for asylum at the end of the affirmative asylum process, or
• They are placed in removal proceedings because they:
 Were apprehended (or caught) in the United States or at a U.S. port of entry without proper legal documents or in violation of their immigration status,
 Were caught by U.S. Customs and Border Protection (CBP) trying to enter the United States without proper documentation, were placed in the expedited removal process, and were found to have a credible fear of persecution or torture by an Asylum Officer.

Immigration Judges hear defensive asylum cases in adversarial (courtroom-like) proceedings. The judge will hear arguments from both of the following parties:
The individual (and his or her attorney, if represented)•
The U.S. Government, which is represented by an attorney from Immigration and Customs Enforcement (ICE)

The Immigration Judge will then decide whether the individual is eligible for asylum. If eligible, the Immigration Judge will order asylum to be granted. If ineligible for asylum, the Immigration Judge will determine whether the individual is eligible for any other forms of relief from removal. Also if one is found ineligible for other forms of relief, the Immigration Judge will order the individual to be removed from the United States. The Immigration Judge’s decision can be appealed by either party.

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Deadline for Asylum Application
Application for asylum must be within a year of arrival in the United States. Subject to pending litigation the DHS is obligated to notify asylum seekers of this deadline.

It should also be noted that a class-action lawsuit has challenged the government’s failure to provide asylum seekers adequate notice of the one-year deadline and a uniform procedure for filing timely applications. Asylum seekers in the affirmative and defensive processes face many obstacles to meeting the one-year deadline. Some individuals face traumatic repercussions from their time in detention or journeying to the United States and may never know that such a deadline exists. Even those who are aware of the deadline encounter systemic barriers, such as lengthy backlogs, that can make it impossible to file their application in good time. In many cases, missing the one-year deadline is the sole reason the government denies an asylum application.

Length of the Asylum Seeking Process
Overall, the asylum process can take years to conclude. In some cases, a person may file his or her application and receive a hearing or interview date years in the future.

As of March 2018, there were more than 318,000 affirmative asylum applications pending within USCIS system. The US government does not estimate the time it will take to schedule an initial interview for these asylum applicants, though historically the delay could reach four years for such asylum seekers.

The backlog in U.S. immigration courts reached an all-time high in March 2018 with more than 690,000 open deportation cases. On average, these cases had been pending for 718 days and remained unresolved.
Individuals with an immigration court case who were ultimately granted relief—such as asylum—by March 2018 waited more than 1,000 days on average for that outcome. New Jersey and California had the longest wait times, averaging 1,300 days until relief was granted in the immigration case.

Asylum seekers, and any family members waiting to join them, are left in limbo while their case is pending. The backlogs and delays can cause prolonged separation of refugee families, leave family members abroad in dangerous situations, and make it more difficult to retain pro bono counsel for the duration of the asylum seeker’s case.

Although asylum seekers may apply for work authorization after their case has been pending for 150 days, the uncertainty of their future impedes employment, education, and trauma recovery opportunities.

Note to Asylum Seekers
While U.S. law provides arriving asylum seekers the right to be in the United States while their claim for protection is pending, the government has argued that it has the right to detain such individuals. Some courts have rejected this interpretation and held that asylum seekers meeting certain criteria have a right to a hearing over their detention if they have been held for at least six months. Several lawsuits have challenged the practice of detaining asylum applicants, including class-action suits that document the prolonged detention—sometimes lasting years—of individuals with credible fear awaiting adjudication of their claim for asylum.

Detention exacerbates the challenges asylum seekers already face and can negatively impact a person’s asylum application. Children and families who are detained suffer mental and physical health problems, including depression, post-traumatic stress disorder, and frequent infections. Studies have found that detained individuals in removal proceedings are nearly five times less likely to secure legal counsel than those not in detention. This disparity can significantly affect an individual’s case, as those with representation are more likely to apply for protection in the first place and successfully obtain the relief sought.

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