Asylum
Asylum is granted to foreign nationals who flee their country and seek protection in the U.S. because they have suffered persecution or fear that they will suffer persecution due to race, religion, nationality, membership in a particular social group, or political opinion. Asylum may be affirmative or defensive.
Affirmative Asylum
An alien may affirmatively apply for asylum if he or she is physically present in the U.S. irrespective of his or her immigration status and regardless of how he or she arrived in the country. The alien must apply within 1 year from arrival in the U.S. unless he or she can establish that there are changed circumstances that materially affect his or her eligibility for asylum or extraordinary circumstances relating to the delay in filing and that he or
she filed within a reasonable amount of time given those circumstances.
After submission of the asylum application, the applicant will be fingerprinted for background checks. If the applicant’s asylum application has been pending for over 150 days, the applicant may apply for a work permit. The applicant will be scheduled for an interview with an Asylum officer who will determine if the applicant is eligible for asylum in the U.S.
If granted asylum, the applicant may petition for his or her spouse and children under 21 to come to the U.S. Within a year from being granted asylum, the applicant and his or her spouse and children under 21 may apply for a green card.
If asylum is denied and the applicant is not in lawful immigration status, the applicant will be issued a Notice to Appear and will be placed in removal proceedings. The immigration judge will conduct a new hearing on the applicant’s asylum claim independent of the decision of USCIS.
Defensive Asylum
An alien who is placed in removal proceedings may raise asylum as a defense. An alien who avails of the asylum defense usually gets to this point because:
1. The alien was referred for removal proceedings after his or her asylum case was denied, as explained above; or
2. The alien has been placed in removal proceedings because he or she was apprehended in the U.S. or at the port of entry for not having proper documents or being in violation of his or her immigration status or was caught at the border without proper documents but was found to have credible fear of persecution or torture by an asylum officer.
The alien (called the respondent in removal proceedings) files his or her asylum application in immigration court, a copy of which is provided to the opposing Department of Homeland Security (DHS) attorney, and submits a detailed statement regarding his or her past persecution or well-founded fear of future persecution based on their race, religion, nationality, political opinion, or membership in a particular social group, if returned to his or her home country. In conjunction with the asylum application, the applicant may apply for Withholding of Removal and relief under the Convention Against Torture (CAT). The immigration judge will hear the applicant’s asylum claim in an adversarial or courtroom-like manner. If found eligible, the immigration judge will grant asylum to the applicant. If not, the judge will look into the other forms of relief claimed by the applicant and if found not be eligible, the applicant will be ordered removed from the U.S. The immigration judge's decision may be appealed to the Board of Immigration Appeals (BIA).
The asylum application process is complex so it is prudent to seek advice and assistance from a licensed and competent immigration attorney before proceeding.
REPRESENTING CLIENTS IN ALL 50 STATES AND OUTLYING TERRITORIES OF THE UNITED STATES
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