Under section 208(a) of the Immigration and Nationality Act, the Attorney General may, in his discretion, grant asylum to an alien who qualifies as a “refugee.” Generally, this requires that the asylum applicant demonstrate an inability to return to his or her home country because of past persecution or a well-founded fear of future persecution based upon his or her race, religion, nationality, membership in a particular social group, or political opinion. However, an alien may be ineligible for asylum under certain circumstances, including having failed to file an asylum application within an alien’s first year of arrival in the United States, being convicted of an aggravated felony, or having been found to be a danger to national security. Similar forms of relief are Withholding of Removal and applications under the United Nations Convention Against Torture.
Asylum may be granted to people who are arriving in or already physically present in the United States. To apply for asylum in the United States, you may ask for asylum at a port-of-entry (airport, seaport, or border crossing), or file an Application for Asylum and for Withholding of Removal, at the appropriate Service Center within one year of your arrival in the United States. You may apply for asylum regardless of your immigration status, whether you are in the United States legally or illegally.
You must apply for asylum within one year of your last arrival in the United States, but you may apply for asylum later than one year if there are changed circumstances that materially affect your eligibility for asylum or extraordinary circumstances directly related to your failure to file within one year. These may include certain changes in the conditions in your country, certain changes in your own circumstances, and certain other events. You must apply for asylum within a reasonable time given those circumstances.
You will be barred from applying for asylum if you previously applied for asylum and were denied by the Immigration Judge or Board of Immigration Appeals, unless you demonstrate that there are changed circumstances which materially affect your eligibility for asylum. You will also be barred if you could be removed to a safe third country pursuant to a bilateral or multilateral agreement.
Can I Still Apply For Asylum Even If I Am Illegally in the United States?
Yes, you may apply even if you are here illegally. You may apply for asylum regardless of your immigration status as long as you file your application within one year of your last arrival or demonstrate that you are eligible for an exception to that rule based on changed circumstances or extraordinary circumstances, and that you filed for asylum within a reasonable amount of time given those circumstances.
Can I Apply For Asylum Even If I Was Convicted of a Crime?
Yes, you may apply. However, you may be barred from being granted asylum depending on the crime. Failure to disclose such information may result in your asylum claim being referred to the Immigration Court, and possible fines or imprisonment for committing perjury.
What About My Spouse and Children?
You must list your spouse and all your children on your Form I-589 regardless of their age, marital status, whether they are in the United States, or whether or not they are included in your application or filing a separate asylum application.
You may ask to have included in your asylum decision your spouse and/or any children who are under the age of 21 and unmarried, if they are in the United States. This means that, if you are granted asylum, they will also be granted asylum status and will be allowed to remain in the United States incident to your asylum status. However, if you are referred to the Immigration Court, they will also be referred to the court for removal proceedings. You should refer to the instructions in Form I-589 for information on the documents you will be required to submit establishing your family relationships, such as marriage certificates and birth certificates.
Children who are married and/or children who are 21 years of age or older at the time you file your asylum application must file separately for asylum by submitting their own asylum applications (Form I-589).
Once you are granted asylum, you may petition to bring your spouse and/or children (unmarried and under the age of 21 as of the date you filed the asylum application, as long as your asylum application was pending on or after August 6, 2002) to the United States or to allow those already here, who were not included in your asylum decision, to remain incident to your asylum status.
What Happens if My Child Turns 21 After I Have Filed My Asylum Application?
Under the Child Status Protection Act, signed into law by President Bush on August 6, 2002, your child will continue to be classified as a child if he or she turned 21 years of age after your asylum application was filed but while it was pending. Your child must have been unmarried and under 21 years of age on the date that you filed your I-589. The “filing date” is the date that USCIS received your application.
There is no requirement that your child have been included as a dependent on your asylum application at the time of filing, only that your child be included prior to the decision made on your claim. This means that you may add to your asylum application an unmarried son or daughter who is 21 years of age, but who was 20 at the time you filed your asylum application.
What is the Fee?
There is no fee to apply for asylum.
How Does The Asylum Officer or Immigration Judge Determine If I Am Eligible for Asylum?
The Asylum Officer or Immigration Judge will determine if you are eligible by evaluating whether you meet the definition of a refugee. The definition states that a refugee is someone who is unable or unwilling to return to and avail himself or herself of the protection of his or her home country or, if stateless, country of last habitual residence because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The determination of whether you meet the definition of a refugee will be based on information you provide on your application and during an interview with an Asylum Officer or at a hearing before an Immigration Judge.
The Asylum Officer or Immigration Judge will also consider whether any bars apply. You will be barred from being granted asylum under INA § 208(b)(2) if you:
- Ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion
- Were convicted of a particularly serious crime (includes aggravated felonies)
- Committed a serious nonpolitical crime outside the United States
- Pose a danger to the security of the United States
- Firmly resettled in another country prior to arriving in the United States
You will also be barred from being granted asylum if you are inadmissible or removable because you:
- Have engaged in terrorist activity;
- Are engaged in or are likely to engage after entry in any terrorist activity (a consular officer or the Attorney General knows, or has reasonable grounds to believe, that this is the case);
- Have, under any circumstances indicating an intention to cause death or serious bodily harm, incited terrorist activity;
- Are a representative of
- a foreign terrorist organization, as designated by the Secretary of State under section 219 of the INA, or
- a political, social, or other similar group whose public endorsement of acts of terrorist activity the Secretary of State has determined undermines United States efforts to reduce or eliminate terrorist activities;*
- Are a member of a foreign terrorist organization, as designated by the Secretary of State under section 219 of the INA, or which you know or should have known is a terrorist organization;
- Have used a position of prominence within any country to endorse or espouse terrorist activity, or to persuade others to support terrorist activity or a terrorist organization, in a way that the Secretary of State has determined undermines United States efforts to reduce or eliminate terrorist activities.*
How Long Does the Process Take?
The time frames below apply only if you will be scheduled for an interview at one of the eight asylum offices. Time frames vary for those who live far from an asylum office because asylum officers must travel to other offices in order to conduct the long-distance interviews.
The Immigration and Nationality Act (INA) provides that the initial interview on asylum applications filed on or after April 1, 1997 should take place within 45 days after the date the application is filed, and a decision should be made on the asylum application within 180 days after the date the application is filed, unless there are exceptional circumstances.
If you have any questions, you should contact Immigration Solutions Group by clicking here for an appointment.