Credit: Asylum Overview, Human Rights First
The Advocates assists people at various stages of the asylum process, including helping people apply for asylum initially, in immigration court, in detention, or on appeal.
NOTE: There are severe penalties for filing frivolous asylum applications. Immigration proceedings and applications are extremely complex. We do not recommend you file an asylum application by yourself without first consulting a reputable immigration attorney, such as The Advocates. If you are outside of our service area, you can find other support at ImmigrationLawHelp.org.
Click the question to learn more.
Asylum is a legal protection given to people who have come to the United States and are afraid to return to their home country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion.
Refugees are individuals who are outside their country of nationality but not inside or at a border of the U.S. when they apply for refugee status. They are also eligible for assistance when they arrive in the United States, as they have the legal status of “refugee” from the moment they enter.
Asylum seekers are people who are outside their country of nationality and at the border of or inside the U.S. when applying for legal protection. They have to go through the process of seeking asylum in the U.S. and are not entitled to permanent legal status or public benefits until their request is approved.
The majority of The Advocates for Human Rights' asylum cases fall into two main categories: Affirmative Cases and Removal Cases. We also handle cases for clients with appeals before the Board of Immigration Appeals and the Eighth Circuit Court of Appeals.
Affirmative cases involve:
- Clients who have not yet applied for asylum or had any contact with immigration services;
- Require that the asylum application be submitted to immigration services within one year of entry, although certain exceptions may be available.
Removal cases involve:
- Clients who apply affirmatively and are not granted asylum;
- Alternatively, the cases may involve clients who were detained by immigration services and are filing their first asylum applications in court.
The asylum process begins with an asylum application that is filed once someone is in the United States. (One cannot apply for asylum outside of the U.S. but may be able to apply for refugee status with the UNHCR, The UN Refugee Agency.) According to U.S. law, the application must be made within one year of entering the United States, although there are some exceptions to this deadline.
A person applies for asylum by filling out an application and submitting it to U.S. Citizenship and Immigration Services Asylum Office. After completing an interview, the asylum officer will either grant asylum or refer the case to immigration court (or, if the person is still in status, deny the application).
If a person is in immigration removal proceedings, that person should file an asylum application with the immigration court. If the judge decides to deny asylum, the judge's decision can be appealed to the Board of Immigration Appeals and the appropriate Circuit Court of Appeals.
People who are granted asylum are allowed to:
- Live and work in the United States;
- File for their spouse and minor children to come to the United States;
- Apply for permanent residence and eventually citizenship;
- Travel outside of the United States (but should not travel to their home country or place in which they fear persecution or torture); and
- Access federally-funded public benefits.
Each case is assessed individually, but there are a few common reasons why asylum is denied. There are categorical legal reasons why someone would be ineligible which include:
- not filing for asylum within one year of entering the U.S.,
- having committed certain crimes,
- being convicted of a particularly serious crime,
- supporting terrorism,
- being a national security threat, or
- having already resettled in a safe third country.
Additionally, a judge or asylum officer may find that the person is not credible or that they do not fit within the refugee definition.
Yes. There are two other types of legal status in the U.S. which can be given to someone who is afraid to return to his or her home country.
The first is called Withholding of Removal. This status? is commonly granted to applicants who would otherwise qualify for asylum but failed to apply within the one year deadline. The legal standard for Withholding is the same as for asylum, but the burden of proof required is higher. If granted, Withholding of Removal prevents the deportation of the person to the country where they fear harm. It does not lead to a permanent residence or citizenship, restricts travel out of the U.S., and does not allow the person to bring family over to the U.S. However, it is an indefinite status and allows the person to work and receive limited public benefits.
?Convention Against Torture (CAT) protection is available to anyone who fears being tortured by their government if deported to their home country. It does not matter why they would be tortured. CAT protection, like Withholding of Removal provides an opportunity to remain in the U.S. legally and work, but with no path to citizenship, no ability to reunify with family, and no travel out of the U.S. CAT protection is legally mandated because the U.S. is a signatory to the Convention Against Torture. For this reason, it is very broad and even individuals with criminal convictions or who have provided support to terrorism may qualify for CAT protection.
Any non-citizen who is stopped at a port of entry and requests asylum will be detained while he or she goes through the “credible fear” process, which is the first step of the defensive asylum process. Some of these people will remain detained throughout their entire asylum case, which could be anywhere from six months to two years or more. Individuals who are arrested by immigration after arriving in the U.S. may be detained while applying for asylum, particularly if they have criminal convictions. Someone granted CAT protection may even continue to be detained after the grant of CAT if they are deemed a danger to their community or a threat to national security.
There is also an electronic monitoring program in place where individuals with asylum cases before the immigration court may be required to wear an ankle bracelet monitor, report to immigration regularly, and have home visits. This is considered an “alternative to detention” and is applied to cases based on the discretion of the detention and deportation officers.