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Types of Asylum Decisions

Going through the asylum process can be an overwhelming and stressful experience. It is often filled with uncertainty about the future. As a migrant seeking refuge in another country, understanding your case's steps and potential outcome is essential. This article aims to clarify the types of decisions you may face, the forms of relief you can avail yourself of, and where you can find support.

What Is an Asylee?

An asylee is any individual outside their home country who cannot return due to a well-founded fear of persecution. Often, they suffer persecution from their home countries because of their religion, race, nationality, political opinion, or membership in a particular social group. These individuals are already present in the United States when they attempt to seek U.S. asylum status.

If you want to apply for asylum, you should file your application within one year after arriving in the United States. The application is filed with the U.S. Citizenship and Immigration Services (USCIS).

Note that there are two types of asylum applications: affirmative and defensive.

For affirmative asylum applications, you are physically present in the United States and meet all the criteria for an asylee. Then, you should file your application one year after you arrive in the United States. A defensive asylum application applies if you undergo removal proceedings and meet the criteria for an asylee. It also applies if facing a deportation order from the immigration court.

Grant of Asylum

If you are looking to apply for asylum status, you aim to receive a grant of asylum. Here, the USCIS determines your eligibility for asylum. Afterward, you will receive a Form I-94 or an Arrival Departure Record. This indicates that you have been granted asylum status according to the rules of the Immigration and Nationality Act (INA).

Then, after one year of holding an asylee status, you may apply for permanent residence or a green card. On top of the one-year residency, you must also meet other criteria and submit documents to qualify for permanent residence status. See the FindLaw article "How to Get a Green Card as a Refugee or Asylee" to learn more.

The grant of asylum status includes you as the principal applicant and may also include your dependents in the United States. Your dependents are immediate family members such as your spouse and minor children. However, for them to be granted asylum, they should meet the following requirements:

  • Physical presence in the United States
  • They were included in your application for asylum
  • You qualified their relationship with them

A grant of asylum is not permanent. The U.S. government may terminate your asylum status after your circumstances have changed. For instance, you no longer experience a well-founded fear of persecution because of a change of circumstances. Or you received protection from another country.

The government may also terminate your asylum status if you committed certain crimes or engaged in activities that violate U.S. criminal and immigration laws. These circumstances make you ineligible to keep your asylum status.

Application for Work Authorization Pending Asylum Decision

You can immediately work in the United States if granted asylum status. However, some asylum applicants opt to apply for an Employment Authorization Document for identification and convenience.

You and your dependents may apply for work authorization when your asylum application is being processed and before the USCIS makes a final decision. You may apply for an Employment Authorization Document (EAD) or file a Form I-765.

The USCIS has the so-called 180-Day Asylum EAD Clock. This system tracks how long your asylum application has been processed with USCIS or an immigration court. It counts the days from when you first filed your application and 150 days after submitting it.

You may apply for a work permit. However, even if you applied for EAD after 150 days, you won't be able to work or will not receive your work authorization until your application is pending for 180 days. The 180-day period is crucial for the USCIS to decide if you are eligible for EAD while waiting for the final decision on your asylum application.

Denial of Asylum Application

If the USCIS denies your asylum application, the consequences will depend on your immigration status and whether you are in the United States legally or illegally. The following are some of the scenarios of what typically happens if your application is denied.

Denial by the USCIS

  • If You Are Lawfully Present in the U.S.: If the USCIS denies your application and you have a valid U.S. visa — for example, a student visa or work visa — you can stay in the U.S. under your current visa status. But you cannot access the protections and benefits of an asylee.
  • If You Are Unlawfully Present in the U.S.: You will be subject to expedited removal proceedings if you do not have valid authority to be in the United States and your asylum application. Here, the USCIS will refer your case to the immigration court, where you will be given the chance to present your case.

Denial by the Immigration Court

If an immigration judge denies your asylum application, you may appeal the decision to the Board of Immigration Appeals (BIA) within 30 days from the decision date. While the appeal is pending, you may stay in the United States. The BIA is a part of the Department of Justice that interprets and applies U.S. immigration laws. It also reviews decisions of immigration courts and some orders made by the USCIS. The BIA has the authority to affirm, remand, or reverse the decision of an immigration judge.

Rulings of the BIA are binding to all Department of Homeland Security (DHS) officers and immigration judges. However, the Attorney General or federal courts can review and override the decision.

Referral to an Immigration Court

If the USCIS does not approve your asylum application and you are physically illegally present in the United States, the USCIS will refer your case to an immigration court. The referral will include your immediate family members in your asylum application who are likewise illegally present in the United States.

Note that referring your case to immigration court does not amount to a denial of your application. It is an action for your case to be further reviewed by an immigration judge. If the USCIS cannot approve your asylum claim, you will receive a letter explaining why it was denied. Together with the letter is a Notice to Appear (Form I-862), which shows the time and date you should appear in immigration court. You don't have to refile your asylum application.

After the USCIS refers your case to the immigration court, the immigration judge will independently assess your asylum claim. They are also not required to base their decision on the ones previously made by the USCIS.

Notice of Intent To Deny

If the USCIS asylum officer finds you ineligible for asylum, the USCIS will mail you a Notice of Intent to Deny. The letter will show the reason for the denial of your application. After receipt of the notice, you have 16 days to file a rebuttal or new evidence. If you respond within 16 days, the asylum officer will carefully consider the rebuttal and approve or deny your claim.

The applicant cannot appeal the decision of the USCIS asylum officers. The denial includes any dependents in the asylum application. Any employment authorization issued to the applicant due to a pending asylum application will expire 60 days from the Final Denial letter date or on the EAD expiration date, whichever period is longer.

Traveling Outside of the United States

Asylum seekers and their immediate families may travel outside the United States or visit their country of origin. However, there are specific measures you have to take before going on a trip.

For Asylum Applicants

Before traveling out of the U.S., you must apply for advanced parole. This allows you to travel back to the U.S. without securing a new U.S. visa. If you fail to secure an advance parole, the U.S. government will presume you abandoned your asylum application. So, you should secure your advance parole documents before traveling abroad. But despite your advance parole, you must still undergo inspection by U.S. Customs and Border Protection (CBP) officers at the port of entry.

For Asylees

If you already have asylum status, you may travel outside of the U.S. after prior approval by the secretary of DHS. The prior approval comes as a travel document for refugees and is valid for a year. The DHS may issue the travel document to asylees and refugees in the U.S. who want to take a temporary trip abroad.

You should get the refugee travel document before you leave the United States. However, specific regulations may also allow the issuing of such documents outside of the U.S. under specific circumstances. Like advance parole, the refugee travel document does not guarantee admission into the United States. You should still go through the inspection by a CBP officer.

Filing an Asylum Application? Seek Legal Advice

The path to seeking asylum status may feel intimidating. Not only are you outside the comfort of your home country, but as a migrant, you also have to deal with the rules and regulations of another country. But, if you or your family members are going through an asylum application, remember that you are not alone.

An immigration attorney can assist you in understanding the process and forms of relief available to your asylum case. They can offer advice tailored to your situation and personalized forms of protection to address your legal challenges. Do not let the fear and uncertainty prevent you from seeking comfort and security through the asylum system. Reach out to an immigration law attorney today and step toward a more secure future.

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