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Asylum Applications: What Are 'Changed Circumstances'?

Imagine running away from your home, leaving everything behind. You continuously run away, knocking on someone else's door to let you in. All because the place you once called home is no longer safe for you and your family.

This is the life of refugees and asylum seekers. These noncitizens are running away from their home country to seek safety in another. They leave everything behind to travel to another country, hoping that they will find shelter and comfort.

In this article, you will learn about refugees and asylees. And the different U.S. Immigration laws that apply to them.

Asylum Defined

Asylum is a form of relief available to people who had to leave their country because their life and safety are at risk. The risk to safety can sometimes be because of their religion, race, political belief, and more.

Foreign-born U.S. residents, also called “noncitizens," may apply for asylum regardless of their immigration status. The Department of Homeland Security (DHS) or the Attorney General grants “refugee" status. This refugee status is given to those who fulfill the eligibility requirements.

A refugee is a person outside their last habitual residence or country of nationality who cannot return to their home country due to credible fear of persecution. The persecution can be based on religion, race, ethnicity, political opinion, or membership in a particular social group. This list includes human rights violations or persecution on account of race.

However, the Immigration and Nationality Act (INA) disallows some asylum seekers from obtaining this status. For example, noncitizens who committed serious crimes may have difficulty seeking asylum. Those who had previous asylum claims barred may also encounter some difficulty.

Understanding Affirmative and Defensive Asylum Applications

First, it is essential to understand that there are two ways to gain asylum status. Asylum status can either be "affirmatively" or "defensively." These cases are processed through the DHS or the U.S. Citizenship and Immigration Services (USCIS).

If a potential asylee is already in the United States, they can avail of the affirmative asylum process. The application will be through the USCIS and the DHS. To start, they must fill out Form I-589 within a year of arriving in the U.S.

Defensive asylum, on the other hand, is available to immigrants undergoing deportation or removal proceedings. "Removal proceedings" are when the government asks a person to leave the country. This can be because that person broke their immigration status. Or they have been living in the U.S. without permission.

Those seeking defensive asylum can file their application at the Executive Office for Immigration Review (EOIR) or through an immigration judge.

Please take note that different procedures may apply in each case. For instance, special considerations apply to unaccompanied alien children. Because each case is different, it is best to seek legal advice from an immigration attorney near you.

Limitations on Ability to Apply for Asylum

In general, one has to apply for asylum once physically in the United States. The process will provide asylum applicants with the “safety blanket" that they need after going through persecution in their home country. However, there are some rules about how and when they can ask for this form of safety.

A noncitizen might not apply for asylum unless the application was filed within a year of arrival in the U.S. But, the one-year filing deadline does not apply if the noncitizen shows any of the following:

  1. A change in country conditions that materially affect the noncitizen's eligibility to seek asylum
  2. Extraordinary circumstances caused the delay in applying

Although the federal statute did not define "changed circumstances," the DHS and DOJ listed some examples.

Included among these examples of "changed circumstances" are the following:

  • Changes in the home country of the noncitizen. The changes should have material effects on the applicant's eligibility. For instance, if there are changes in United States Code (U.S.C.) or U.S. laws.
  • Changes in the noncitizen's country of origin or country of the last residence. An example of this if there is the presence of armed conflict.
  • If a noncitizen was formerly included as a dependent on another asylum application.
  • The loss of the noncitizen's immediate family member, either due to divorce, marriage, death, or reaching 21 years of age.

The noncitizen must submit their application within a "reasonable period." According to the Board of Immigration Appeals (BIA), the applicant is not automatically granted a one-year extension due to changed circumstances.

The applicant must first prove the following for the “changed circumstances" exception to apply:

  • A changed circumstance occurred on or after April 1, 1997;
  • The changed circumstance significantly affects the applicant's eligibility for asylum; and
  • Given the nature of the changed circumstance, the asylum seeker's application was filed within a reasonable period

What Qualifies as a 'Reasonable Period of Time'?

Even when a noncitizen seeking asylum experiences big or extraordinary circumstances, they still have to submit their application within a reasonable time. But what does “reasonable period of time" mean?

The asylum officers reviewing an application for asylum typically consider a few things. The following are considered when deciding whether the change is “reasonable":

  • The noncitizen's level of education and experience
  • How long it took them to find an immigration attorney
  • If the noncitizen has been sick or hurt
  • When the noncitizen learned about the changed circumstance
  • Any other relevant factors that can affect their request

Previously Denied Applications

If a noncitizen already asked for asylum before but was denied, they usually cannot apply for it again. But, if they are in the process of removal proceedings, they may try to reopen the case.

In general, the reopening of the case should be filed within 90 days after the removal order. But, if there are significant changes in your country of nationality, the time limit to reopen the case usually does not apply. If the alien has an application for withholding of removal, they should also show that they meet these criteria.

An immigration judge will assess the claims during the removal proceedings in an immigration court.

In some instances, a noncitizen may face fast-track deportation called expedited removal. This process happens without the usual adjudication in immigration court.

A noncitizen facing expedited removal may also undergo a credible fear interview. The noncitizen may undergo the standard removal process once they pass this interview. The alien can also be granted an opportunity to apply for asylum.

Note that a noncitizen may challenge the decisions made in a removal proceeding in federal court.

Safe Third Country Agreements

Asylee's may not avail of asylum relief if they can be sent to a different country. A "safe third country" is where the applicant can avail of the same protections in another country.

For instance, Canada and the U.S. maintains a Safe Third Country Agreement (STCA). This means Canadians at U.S. ports of entry are not eligible to seek asylum in the U.S. When this happens, the noncitizen will be returned to Canada, where they can seek the same protections.

Immigration judges and asylum officers can assess whether a non-U.S. citizen is subject to STCA.

During the Trump Administration in 2019, the DHS signed Safe Third Country Agreements with El Salvador, Honduras, and Guatemala. This allowed the DHS to transfer asylum seekers to those countries instead of evaluating their claims in the U.S.

Can an Asylee Obtain a Green Card?

Asylees can apply for a lawful permanent resident (LPR) status or green card. The noncitizen can apply for LPR or green card after living in the U.S. for at least one year after gaining asylum status. The asylee must fill out Form I-485 to apply for LPR. This form is an Application to Register Permanent Residence or Adjust Status, found in the U.S. Citizenship and Immigration Services (USCIS).

The asylee should also meet other conditions to apply for LPR. For example, they still have to qualify as an “asylee" at the time of application. Thus, if there is a change in the asylee's position at the time of application, such as the asylum status has been terminated, the asylee cannot apply for LPR or adjustment of status.

Asylees can likewise apply for family reunification and resettlement into the United States.

You Don't Have To Do This Alone: Seek Legal Advice

Asylum cases and immigration laws can be tricky and hard to understand. Plus, each case is different. What works for some people, might not work for you.

If you or someone you know is looking to seek asylum, it is best to get legal advice from an immigration attorney.

Even if you try to read immigration laws, you might still miss some things. But an experienced immigration lawyer can make the process easier for you. They will help you understand your situation. An immigration attorney can also tell you the circumstances in your life that can help your case.

You don't have to go through this process alone. Contact an immigration lawyer near you to assist you with your asylum application.

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