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Understanding the Path to Requesting Asylum in the U.S.

For many individuals worldwide, the United States represents a beacon of hope and a refuge from persecution, violence, and other forms of injustice. The U.S. upholds a longstanding tradition of providing asylum to individuals who have been persecuted or fear persecution due to race, religion, nationality, membership in a particular social group, or political opinion. If you find yourself in dire circumstances that compel you to seek sanctuary far from home, you may consider applying for asylum in the U.S. This comprehensive guide aims to demystify the process, offering clear, compassionate guidance for those pondering the question: "Can I request asylum in the U.S.?"

Eligibility Criteria for Asylum Seekers

The United States recognizes the right of asylum for individuals as specified by international and federal law. However, to be considered for asylum, applicants must meet certain criteria:

  1. Reason for Persecution: You must demonstrate that you've been persecuted or fear persecution in your home country due to your race, religion, nationality, political opinion, or membership in a particular social group.
  2. Timeframe for Applying: You are required to apply for asylum within one year of your arrival in the United States, barring specific circumstances that may have prevented you from applying within this period.
  3. Location: You must be physically present in the United States or seeking entry into the country at a port of entry to apply for asylum.

Understanding these criteria is the first step in evaluating whether you can seek asylum in the U.S. Each case is unique, and the specifics of your situation will significantly influence the outcome of your application.

The Asylum Process: Key Steps

Navigating the U.S. immigration system can be complex and daunting. Below, we break down the key steps in the asylum process to provide clarity and aid your understanding.

  1. Arrival in the U.S.: You must be in the United States or at a port of entry to seek asylum. This can be a border crossing or an airport, for example.
  2. Filing Your Application: Complete and submit Form I-589, Application for Asylum and for Withholding of Removal, to the U.S. Citizenship and Immigration Services (USCIS). This form is available for free and you have the right to apply regardless of your current immigration status.
  3. Fingerprints and Background Checks: After your application is received, you'll be scheduled to have your fingerprints taken and will undergo necessary security and background checks.
  4. Asylum Interview: You'll be required to attend a non-adversarial interview with a USCIS officer who will ask you questions about your application and background. It's crucial to be honest and thorough in your responses.
  5. Decision: Decisions can take weeks or months, during which time applicants are typically eligible to remain in the U.S. In cases of affirmative asylum (when you are not in removal proceedings), if your case is not decided within 180 days, you may apply for a work permit.

It's important to note that you can include your spouse and children (unmarried and under 21) on your application if they are in the United States.

Understanding the Two Types of Asylum: Affirmative and Defensive

Within the U.S. asylum system, there are two primary types of asylum processes: affirmative and defensive. Understanding these processes is crucial as they dictate the procedures and potential outcomes of your case.

Affirmative Asylum Processing With USCIS

If you are not in removal proceedings, you can proactively seek protection by applying for affirmative asylum. You'll need to:

  1. Ensure you're not subject to any asylum bars (e.g., having committed certain crimes).
  2. File Form I-589, Application for Asylum and for Withholding of Removal.
  3. Attend an interview with an asylum officer.

This is a non-adversarial process, meaning it's intended to be non-confrontational, with the goal of understanding your claim.

Defensive Asylum Processing With EOIR

Defensive asylum is a process you enter not by choice, but as a defense against removal from the U.S. This happens after you:

  1. Are referred to an Immigration Judge by USCIS after they've denied your affirmative asylum application.
  2. Are placed in removal proceedings because you: were apprehended in the U.S. without proper legal documentation, were caught trying to enter the U.S. without proper admittance or parole, or violated your immigration status and were subsequently placed in removal proceedings.

This is an adversarial process, meaning it involves argumentative proceedings with a judge, and often, attorneys representing the government and the asylum seeker.

What Happens if Your Asylum Request is Granted?

Being granted asylum has several immediate and long-term impacts:

  • Protection from Removal: You cannot be returned to your home country, with some exceptions (e.g., change of circumstances in your home country or revocation of asylum).
  • Authorization to Work: You are eligible to apply for a Social Security card and start working immediately. You can also receive an Employment Authorization Document (EAD).
  • Petition to Bring Family Members: You can petition to bring your spouse and unmarried children under the age of 21 to the U.S.
  • Permanent Residency: After one year of being granted asylum, you can apply for lawful permanent resident status (Green Card).

Keep in mind that while asylum provides numerous protections and benefits, it also comes with responsibilities. You must obey U.S. laws and may be called upon to assist in other asylum cases, among other requirements.

What if Your Asylum Request is Denied?

Unfortunately, not all asylum applications are approved. If your application is denied, you still have options:

  • Appeal: You can appeal the decision to the Board of Immigration Appeals (BIA) within a specific period after receiving the decision.
  • Reopening or Reconsideration: If there are new facts or evidence, or you believe there was a mistake in the previous decision, you can file a motion to reopen or reconsider your case.
  • Defensive Asylum: If you applied for affirmative asylum and were denied, you might be placed in removal proceedings, where you can present your case before an Immigration Judge.

Given the stakes, it's often wise to seek legal advice if your application is denied. A knowledgeable immigration attorney can provide guidance tailored to your specific circumstances.