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A Step-by-Step Guide to the U.S. Asylum Process

The journey of seeking asylum is daunting and overwhelming. The process is full of uncertainty and legalities that are hard to understand. This article offers an understandable step-by-step guide to seeking asylum in the United States, starting from arrival to understanding the decision of your asylum application.

Establishing Eligibility for Asylum

All asylum seekers must meet the refugee status definition under the Immigration and Nationality Act. This includes foreign nationals who are unable or unwilling to return to their home countries because of a well-founded fear of persecution based on their race, religion, nationality, membership in a particular social group, or political opinion.

Different Ways to Get Asylum in the U.S.

There are three main ways foreign nationals can get asylum:

  • The affirmative process. This is available to foreign nationals in the U.S. who are not undergoing removal proceedings. The applicant is often held at the U.S. port of entry without proper immigration documentation.
  • The defensive process. Foreign nationals make use of defensive asylum if they are undergoing removal proceedings.
  • Asylum merits interview after determination of positive credible fear. This happens if the person, initially in expedited removal proceedings, shows a reasonable fear of persecution or torture in their home country.

Step-by-Step Process for Affirmative Asylum

The following are the detailed steps to get affirmative asylum in the United States.

Step 1: Arrival in the United States

You must be in the United States to start an affirmative asylum process.

Step 2: Application for Asylum

To apply for asylum, file an Application for Asylum and Withholding of Removal (Form I-589). You should file this form with the U.S. Citizenship and Immigration Services (USCIS) within one year of your arrival in the United States. If you fail to file your application within a year, you may not be eligible to apply for asylum.

If you want to know where to file your application, it is crucial to stay updated and check the USCIS-589 page on where to apply.

Step 3: Fingerprinting and Background Checks

After filing your application, the USCIS will take your photographs, fingerprints, and signature. The USCIS will arrange the schedule for your biometrics appointment at the local Application Support Center (ASC). Your appointment notice will have other information, such as the date, time, and location. The biometrics data collected during your appointment will confirm your identity. The USCIS officers also use your biometrics data to run background checks.

Step 4: Interview Notice

USCIS will schedule you for an asylum interview with an asylum officer. The asylum officer will interview you at the asylum office or the USCIS field office. The interview notice will contain the date, time, and location of your asylum interview.

Note that as the USCIS Asylum Division schedules asylum interviews according to particular priority, as of Jan. 29, 2018:

First priority: Asylum applications that were initially scheduled for an interview but were later rescheduled because of the applicant's request or the requirements of the USCIS.

Second priority: Asylum applications pending for 21 days or less.

Third priority: The rest of the affirmative asylum applications that are pending. The USCIS schedules it, starting with the recently filed and working backward to the older filings.

Step 5: Visa Interview

During the interview, you may bring a lawyer or an accredited representative. It is also important to bring your spouse and children looking to apply for derivative asylum from your asylum application.

Step 6: Asylum Officer Determines your Eligibility, and the Supervisory Asylum Officer Reviews the Decision

The asylum officer will assess whether:

  1. You qualify to apply for asylum
  2. Meet the definition of a refugee as outlined in the Immigration and Nationality Act (INA) Section 101(a)(42)(A) and
  3. You can't get asylum status as per 208(b)(2) of the INA.

A supervisory asylum officer reviews the decisions of the asylum officer. This process ensures that the decisions follow legal standards. Depending on the details of each case, the supervisory asylum officer could also forward the decision to the asylum division staff at the USCIS headquarters for further review.

Step 7: Receipt of Decision

In most instances, you must pick up the decision from the asylum office. The decision is often available two weeks after your interview with an asylum officer. But, in some cases, processing may take longer if you:

  • Have an invalid immigration status
  • You interviewed at a field office of the USCIS
  • You have security checks pending, or
  • You have a case under review by staff at the asylum division at the USCIS headquarters.

In these situations, the USCIS typically sends mail to inform you of the status of your case.

Types of Asylum Decisions

You will receive one of the following decisions when applying for affirmative asylum with the USCIS.

Grant of Asylum

If the USCIS determines that you meet all the eligibility requirements for asylum, it will send you a letter. The letter will include a complete Arrival/Departure Record (Form I-94), showing that the United States granted you asylum.

Once you receive asylum, you can apply for the following:

The grant of asylum does not expire. But, the USCIS may still terminate your asylum status if any of the following applies:

  • You received protection from another country
  • You received the grant of asylum through fraud
  • You are no longer under a well-founded fear of persecution due to a fundamental change in circumstances
  • You engaged in or committed crimes or other activities that make you ineligible to keep your asylum status in the United States.

Referral to an Immigration Court

If the USCIS can't approve your asylum application and you are illegally staying in the United States, the USCIS will refer your case to an immigration court. The referral will also include your beneficiaries, such as your spouse and unmarried children under 21, if:

  • You included the spouse and unmarried child in your application for asylum
  • They are illegally staying in the United States

Note that a referral does not mean denial of your asylum application. If your case does not qualify for immediate approval, the authorities will refer it to an immigration court for further review.

If USCIS can't grant your asylum claim, it will send you a letter explaining why. It will also include a Notice to Appear (Form I-862), showing the date and time you should appear in immigration court.

Then, the immigration judge will conduct an evaluation independent of the decisions made by the USCIS.

Sending an Application to an Immigration Court

In some cases, the USCIS will send your application for asylum to the immigration court for adjudication. This may happen if the USCIS determines:

  • The Department of Homeland Security (DHS) issued and registered your Notice to Appear (NTA) with the Executive Office for Immigration Review (EOIR).
  • The DHS issued you an NTA that was not docketed and filed with the EOIR.
  • After filing and registering your NTA with the EOIR, you submitted your application for asylum to the USCIS within 21 calendar days.

In these cases, the USCIS will transfer your application to the immigration court, which will oversee your case and inform you of their action through mail.

Notice of Intent to Deny

If you hold a legal immigration status in the U.S. but do not qualify for asylum, the authorities may issue you a notice of intent to deny (NOID). The NOID will give a detailed reason you were ineligible for asylum. Within 16 days, you must provide new evidence or explain in writing why the USCIS should approve your claim.

If you do not respond within 16 days, the authorities may deny your asylum claim. If the USCIS receives your response on time, the USCIS asylum officer will thoroughly review your response or the new evidence presented. The asylum officer will grant or deny your application based on the evidence or response you presented.

You can read more about Types of Asylum Decisions in this article by FindLaw.

Seek Legal Help from an Immigration Attorney

The U.S. asylum system has intricate and complicated rules. Learning about the steps is crucial for those seeking asylum in the United States. You must understand your eligibility to apply as an asylee and what to expect when you file your application. Due to its complexity, you should seek legal advice from an immigration law attorney. They can give you invaluable guidance in understanding the asylum process. They can help you prepare your asylum case and present it effectively. They can also give you the latest updates and ensure you are well-protected and informed. Contact an immigration attorney near you to support you during these challenging times.

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