Asylum Law in the United States
First of all, in order to apply for asylum, you must first be present in the United States. There are two processes to get asylum in the United States. They are the “Affirmative” and “Defensive” asylum processes.
The One Year Bar
A person must file for asylum within one year of the person’s last entry into the United States. There are two exceptions to this rule. First, a person can file for asylum past the one year deadline if there are changed circumstances. Sometimes a person does not have a reasonable fear of future persecution when entering the United States, but something changes after entry that creates a reasonable fear. This can be a change in a person’s personal circumstances, such as a change in religion, or a change in a country’s circumstances, like a change in government. The second exception is if there are extraordinary circumstances that would prevent a person from applying for asylum within one year. In both cases, if an exception applies, a person must apply within a reasonable time of becoming able to apply for asylum.
Note that the government is very strict in enforcing the one year rule. First, the burden is on the asylum applicant to prove that he or she applied within one year of entering the United States, and must prove so by clear and convincing evidence. Second, the exceptions listed above are rarely given out and only when someone clearly fits the requirements.
A person who is in the United States can apply for asylum with the Department of Homeland Security. If your application is rejected, you cannot appeal. If you are in the United States illegally and your affirmative asylum application is rejected, your case is referred to Immigration Court and you will be placed in removal (deportation) proceedings. The government is allowed to detain you or make you pay a bond, but most asylum applicants are not detained.
An affirmative application starts with the asylum applicant filing for I-589 with the government. A few months later, the Asylum Office will schedule an interview with the asylum applicant. The asylum applicant is required to provide his or her own interpreter, and the asylum applicant’s attorney is allowed to attend as well. A few months after the interview, the Asylum Officer will issue its decision.
An asylum applicant can apply for a work permit six months after applying for asylum. It used to be one month, but too many people just applied for asylum in order to get a work permit.
A person who is in removal (deportation) proceedings can ask the Immigration Judge for asylum as a defense to being deported. The Immigration Judge can grant asylum even if the government has previously rejected the applicant’s affirmative asylum petition. The Immigration Judge schedules a hearing to collect evidence that is similar to a trial. If the Immigration Judge rejects the defensive asylum application, the applicant can appeal.
There are three ways an asylum applicant can end up in removal proceedings. The first way is if a person who is in the United States illegally and has their affirmative asylum application denied. The second way is if a person is in the country illegally and arrested by immigration enforcement officers. The third is if a person is stopped at the border (or an airport) without a valid visa, and after an interview, the border officer believes it is possible that the person may be eligible for asylum. No matter how someone ends up in removal proceedings, they can apply for asylum before the Immigration Judge. The fact that an affirmative asylum application was denied does not affect whether or not the Immigration Judge will grant asylum.
When someone is put into removal proceedings, that person will receive a notice to appear. This paper will say when and where he or she is required to show up in court. The first time a person goes to Immigration Court, it is for something called a Master Calendar hearing. This is a preliminary hearing where the Immigration Judge decides how to best handle a case. Sometimes the Immigration Judge will give an applicant extra time by scheduling another Master Calendar hearing in the future, and sometimes the Immigration Judge will schedule an Individual Hearing. An Individual Hearing is like a trial to determine whether or not a person qualifies for asylum. Evidence is present at this hearing and witnesses testify. Sometimes the Immigration Judge will make a decision at the end of the hearing, but more often he or she will want some extra time to make a final decision on asylum.
If an Immigration Judge denies an asylum application, the asylum applicant can appeal to an organization called the Bureau of Immigration Appeals (BIA). If the BIA agrees with the Immigration Judge’s ruling, they will reject the appeal. If the BIA believes the Immigration Judge made a mistake, they will send the case back to the Immigration Judge with orders to fix it. If the BIA rejects the appeal, the asylum applicant can appeal the case to the U.S. Court of Appeals.
If asylum is granted, then the applicant will be granted asylum status and be allowed to live and work in the United States for life, along with his or her spouse and any unmarried children under 21 that was listed on the asylum application. One year after being granted asylum, an asylee can apply for a Green Card, and later on, U.S. citizenship.
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