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Asylum in the United States: An Overview

Asylum United States

Asylum in the United States: An Overview

In a world often full of violence and discord, thousands of refugees flee their native countries in search of peace. Those seeking asylum, or protection, in the United States often fear persecution for a variety of reasons. In fact, asylees may face imprisonment, serious injury, or even death upon return to their country of origin. By allowing immigrants to petition for asylum, the US acknowledges that for many people across the globe, threat of persecution or harm requires government intervention and protection.  Those granted asylum may become lawful permanent residents (LPRs) and naturalized citizens in due time, building lives in safety away from fear.

For those interested in petitioning for asylum, the road is often daunting. Applications can take months, or even years, to process, all while families and lives hang in the balance. Additionally, new developments in asylum law announced by the Trump administration complicate an already complicated and emotional process. A skilled immigration attorney can guide asylum seekers through barriers and challenges, ensuring they are accurately and appropriately prepared. The lawyers at Nanthaveth & Associates take pride in their ability to assist and represent those who seek shelter in the United States. In fact, anyone can schedule a free initial consultation to discuss the details and potential outcomes of their case.

Who can seek US asylum?

The United States (US) formally defines asylum based on the Immigration and Nationality Act (INA). Further, any person wishing to gain asylum must meet the INA’s requirements. The United States Citizenship and Immigration Services (USCIS) defines asylum as a “protection from fear of removal to a country of feared persecution that allows an eligible refugee to remain in the United States and eventually become a lawful permanent resident.”[1]

Firstly, asylum seekers, most often refugees, appeal for asylum while either physically in the US or at a port of entry (POE). This is an essential component of asylum, separating asylees from refugees. Any foreign national may register or appeal for consideration for asylum status regardless of their means of entering the US. Method of entry, though, often dictates whether an applicant is eligible for affirmative or defensive asylum. Additionally, current Trump administration initiatives hope to prevent asylum seekers who entered the U.S. illegally from claiming asylum. Human rights groups are passionately challenging this effort in the U.S. court system. For consideration, asylum seekers should submit applications within one year of arriving in the US.[2]

Types of US Asylum

Two distinct types of asylum exist: affirmative asylum and defensive asylum. Firstly, affirmative asylum involves a formal petition announcing one’s intention to seek asylee status. After submission, the USCIS processes these applications when available (currently, there is a massive processing backlog). The procedure involves an initial application, including submission of material evidence, followed by an interview with an official from the USCIS. Over 100,000 individuals applied for affirmative asylum in 2016.[3] Detailed later in this article is specific information about how to apply for affirmative asylum.

On the other hand, defensive asylum processes through immigration courts. This often happens when border patrol or ICE apprehends immigrants with no legal status and they face deportation. Additionally, those whose affirmative asylum requests were denied may seek defensive asylum. Defensive asylum petitioners are subjected to a credible fear screening by the USCIS before being placed before an immigration court. If considered eligible and credible, applicants must then state their appeal for asylum in front of a judge. Ultimately, the judge will make the ultimate decision with regards to asylum.

Where are asylum seekers from?

Asylum seekers can journey from any country or continent. Currently, the majority of those granted asylum are citizens of countries in Asia, the Americas, or Africa. In fact, in 2016, 54% of asylum grantees (affirmatively or defensively) originated from just five countries. Those countries, in descending order, are China (4,484), El Salvador (2,157), Guatemala (1,949), Honduras (1,505), and Mexico (919).[4] Finally, Chinese nationals accounted for 38% of defensive asylum grantees and nearly 12% of affirmative asylum grantees.[5]

Why can someone seek US asylum?

Asylum seekers must be found to have significant risk of harm upon returning to their native country. Put simply, anyone seeking asylum must make clear during their application process that their fear of persecution, torture, or harm is reasonable. The likelihood of retaliation or harm must be high. The USCIS lists general reasons why a person may be persecuted, including:

  • Race or Ethnicity
  • Nationality
  • Religion
  • Political beliefs or affiliation
  • Membership in a particular social group

Those seeking asylum who are apprehended at the US border or are already part of deportation proceedings may be subjected to a “credible fear” screening. In short, credible fear screenings are guided interviews conducted with an officer from the USCIS. Those who interviews find to have credible fear, meaning that there is a great likelihood of harm or persecution in their home country, are referred to an immigration judge for a hearing. In 2016, the US government conducted 92,000 credible fear screenings. [6]

Applying for affirmative asylum in the United States

Applicants must apply for affirmative asylum within one year of entering the United States. To begin, submission of Form I-589, Application for Asylum and Withholding of Removal, initiates the consideration process for affirmative asylum. A potential asylee can file Form I-589 at no cost.

Once the USCIS processes and reviews all relevant information, an interview will be scheduled. Interviews are roughly one hour in length and performed under oath, meaning a person swears to tell the truth. It may be difficult or painful to remember trauma or persecution in detail, but as much information as possible should be provided. Material collected during the interview is critical and will directly affect the ultimate asylum decision. In fact, asylum seekers will often hire immigration lawyers to represent their interests. This is because an attorney may be present at an asylum interview once Form G-28 has been completed and submitted. Further, attorneys can provide much needed support throughout an already stressful process.

Interviewees should bring all relevant evidence and required documents to the interview, including:

  • Passport(s) and any other relevant travel ID documents
  • Birth certificate(s)
  • Marriage certificate(s)
  • I-94 Arrival Record
  • Copy of I-589 Application
  • Form G-28 if an attorney will be present

More detailed information about preparing for an affirmative asylum interview can be found here.

A Note on Current Events

For persons seeking asylum in the U.S., current events can cause fear, uncertainty, doubt, and frustration. First, wait times for asylum processing can be astronomical. In early 2018, the USCIS made a statement announcing new asylum application review procedures. The USCIS intends new procedures, including prioritizing newly filed applications, to address the immense backlog of nearly 300,000 asylum applications. The backlog is severe, and processing times for many are unpredictable and frustrating. In fact, some asylum seekers have waited months, or even years, to receive decisions.

In the Fall of 2018, the Trump administration announced a proclamation attempting to strip rights from certain asylum seekers. The president addressed those who enter the country illegally at the U.S.-Mexico border. While this action was promptly blocked by an injunction, it is unclear if Trump’s new asylum procedures will become law, or at least precedent. Additionally, the president initiated a controversial new policy, forcing asylum seekers to wait in Mexico while their asylum cases process. The U.S. learned in early December that the president was considering such an action, but it wasn’t until December 20 that DHS officially announced the new policy. Surely, human rights groups and other organizations will challenge this new policy in court. Nanthaveth & Associates continues to watch this developing story and will post updates to our blog.

Contact an experienced immigration attorney

Without question, those seeking asylum should have as simple of an application process as possible. In conclusion, an experienced lawyer can assuage fears, correctly complete and file paperwork, provide adequate council, and protect an asylum seeker’s rights.

Are you considering applying for political asylum within the United States? Are you frustrated with the current application process? Without doubt, an immigration attorney will provide guidance and clarity. In conclusion, contact the immigration experts at Nanthaveth & Associates for a free consultation today. We’ll help you plan for your case and your future.

Sources

[1]US Citizenship and Immigration Services. (2012). Information Guide for Prospective Asylum Applicants. Retrieved from https://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Refugees%20%26%20Asylum/Asylum/Information%20Guides%20For%20Prospective%20Applicants/info-guide-for-prospective-asylum-applicants-english.pdf

[2] Massaad, N. & Baugh, R. (2018). Refugees and Asylees: 2016. Office of Immigration Statistics, Department of Homeland Security. Retrieved from https://www.dhs.gov/sites/default/files/publications/Refugees_Asylees_2016_0.pdf

[3] Massaad, N. & Baugh, R. (2018).

[4] Massaad, N. & Baugh, R. (2018).

[5] Massaad, N. & Baugh, R. (2018).

[6] Massaad, N. & Baugh, R. (2018).