Asylum
Understanding the Process and Challenges
Federal law in Title 8 U.S. Code § 1158 establishes that any alien physically present in or arriving in the United States, regardless of status, may apply for asylum. Also governed by the UN's 1948 Universal Declaration of Human Rights, UNHCR Refugee Convention of 1951, and the Refugee Act of 1980, a refugee is defined as any person outside their country of nationality who is unable or unwilling to avail themselves of their country's protection due to persecution or well-founded fear of persecution based on nationality, religion, race, membership in a particular social group, or political opinion.
Affirmative Process
To apply through the affirmative process, you must be physically present in the United States and can apply regardless of your method of arrival or current immigration status. You must apply within one year of your last arrival date, unless circumstances materially changed or extraordinary circumstances caused a delay.
File Form I-589, Application for Asylum and Withholding of Removal with USCIS. After USCIS receives Form I-589, you will receive an acknowledgment of receipt and a notice to visit the nearest Application Support Center for fingerprinting.
Interview priority order: (1) previously scheduled but rescheduled cases; (2) applications pending 21 days or less; (3) all other pending applications, newest first. You may bring an attorney or accredited representative. Spouses and children seeking derivative asylum must also attend. Non-English speakers must bring an interpreter. Interviews typically last about one hour.
A Person Is Not Eligible to Apply for Asylum If They:
- Do not follow the one-year filing deadline for Form I-589
- Had an immigration judge or the BIA deny their previous asylum application
- Can be removed to a safe third country under a two-party or multi-party agreement
Defensive Process
The defensive process occurs when an alien requests asylum as a defense against removal. Cases are heard in adversarial proceedings before an immigration judge, who hears from both the alien and an ICE attorney.
There are generally two ways people can be placed into defensive asylum processing: (1) referral from USCIS after an affirmative asylum denial; or (2) apprehension without proper documents and a determination that credible fear exists.
Asylum Merits Interview
Aliens in expedited removal who indicate intent to apply for asylum may be referred to USCIS for credible fear screenings. If credible fear is found, USCIS can either retain and schedule an Asylum Merits Interview, or issue a Notice to Appear. If no credible fear is found, the alien can request review by an immigration judge. This procedure applies only to adults and families placed in expedited removal after May 31, 2022.
Do you need help applying for asylum in the greater Los Angeles area? The Law Office of Todd Becraft understands the most effective ways to handle these cases, so we will be able to help you achieve the most favorable outcome for your particular case. Our firm works very closely with every person we represent, so you can know that we will be by your side the entire time.