Obtaining Asylum in the United States

There are two ways of obtaining asylum in the United States, an affirmative filing through an asylum office and a defensive filing in removal proceedings. Rostova Westerman Law Group, P.A. has years of experience in both the affirmative and defensive asylum processes and has successfully represented individuals seeking asylum in the U.S.  It is very important to note that normally an applicant must file for an application for asylum within one (1) year of entering the U.S. to be eligible for asylee status, unless he or she falls within a narrow exception to the one-year filing deadline.  

The process of filing for asylum requires applicants to provide detailed information regarding their past activities, associations, experiences of persecution, and current fear of future persecution should they be forced to return to their home countries. They must also provide information on conditions in their home country to support the accuracy of their claim. This information must be consistent with an applicant’s account of events and objectively support his/her fear of return.  It is extremely important to have a qualified immigration attorney to assist in the preparing and filing of an asylum application to avoid any discrepancies and inconsistencies during the asylum process as an applicant's credible is often the most important factor in an asylum claim.  

To be eligible for asylum in the United States, the applicant must demonstrate that he/she is a “refugee” as defined by INA §101(a)(42), which includes several elements, each of which has been defined in greater detail through regulations and case law:

• applicant is outside of his country of nationality or, for those without a nationality, outside country last habitually resided;
• he/she is unable or unwilling to return to that country and unable or unwilling to avail self of protection of that country;
• because of persecution or a well-founded fear of persecution experienced in the home country;
• on account of race, religion, nationality, membership in a particular social group, or political opinion.

Affirmative Asylum Processing With USCIS

To obtain asylum through the affirmative asylum process you must be physically present in the United States. You may apply for asylum status regardless of how you arrived in the United States or your current immigration status. 

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; and
• You filed within a reasonable amount of time given those circumstances.

If your case is not approved by the local asylum office and you do not have a legal immigration status, USCIS will issue a 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 ‘de novo’ 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 regarding the individual's asylum claim. 

Defensive Asylum Processing in Immigration Court

A defensive application for asylum occurs when you request asylum as a defense against removal from the United States after the applicant has been placed in removal proceedings. Immigration Judges hear defensive asylum cases in adversarial (courtroom-like) proceedings. The judge will hear arguments from both of the parties (the applicant and his/her attorney and an attorney representing the goverment in the asylum claim). The Immigration Judge then decides whether the individual is eligible for asylum.  If found eligible, the Immigration Judge will order asylum to be granted.  If found ineligible for asylum, the Immigration Judge will determine whether the individual is eligible for any other forms of relief from removal.  If 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 to the Board of Immigration Appeals. 

Once granted asylum, the individual may apply for work authorization and after one year in asylee status may apply to adjust status to lawful permanent resident.