How to Claim Asylum in the United States

Asylum is the legal protection provided by the United States government to a person from another country who can demonstrate a “well-founded fear of persecution.” Every year, thousands of non-citizens arrive at the U.S. border to seek asylum or apply from within the United States. Asylum is a difficult and complex process involving multiple agencies that is facing increasing federal restrictions.

Given the numerous barriers facing asylum seekers who are being sent back to dangerous and unstable home countries in large numbers, it makes sense to hire an experienced immigration lawyer to fight your case.

What is the Legal Basis of Asylum?

Asylum is protection granted to foreign nationals who are already in the United States or at the border. Asylum seekers meet the international law definition of “refugees,” but unlike refugees, they are already in the United States or at its borders.

Under the United Nations 1951 Convention and the 1967 Protocol, a refugee is defined as a person who is unable or unwilling to return to their home country and cannot obtain protection in that nation because of previous persecution or a well-founded fear of being persecuted in the future.

The United States is a signatory to the 1967 protocol and has a legal obligation to protect asylum seekers and refugees through U.S. immigration law. Congress incorporated the definitions of asylum into the Refugee Act of 1980.

What Are The Grounds of Persecution to Leading to an Asylum Claim?

The grounds for seeking asylum in the United States are set out by U.S. Citizenship and Immigration Services. They are persecuted on the basis of:

• Race;
• Religion;
• Nationality;
• Membership of a particular social group;
• A political opinion.

How To Claim Asylum In the United States

Foreign nationals who are potentially eligible for asylum may be permitted to remain in the United States while their application is processed. Asylum seekers must file a Form I-589, Application for Asylum and for Withholding of Removal, within a year of arriving in the United States. There is no fee to apply for asylum.

Asylum seekers may include their spouse and children who are in the United States on their application at the time of filing or at any juncture before a final decision is made on their case. Children may only be included in the application if they are under 21 and unmarried.

Once a USCIS service center receives a completed application packet from an asylum seeker, it will send the asylum seeker a receipt notice.  Applicants are then sent a biometrics notice providing instructions on how to have their fingerprints taken at the nearest application support center. The FBI will conduct a background check based on the fingerprints. This must be completed prior to the interview. If an applicant provides prints and passes a background investigation, he or she will be sent an interview notice detailing the time and place of an asylum interview.

At the interview, a USCIS asylum officer will question the applicant to establish if he or she has a “credible fear” of returning to a home country because of past persecution. At this stage, the applicant may be granted asylum. If an asylum officer denies the claim, the applicant will be scheduled for a hearing before an immigration judge to decide the claim.

This process is also known as affirmative asylum. Other asylum seekers may be in detention centers and the threat of deportation is hanging over their heads. In 2017, a United Nations human rights panel urged the United States to end the widespread detention of asylum seekers, saying the practice has “grown exponentially” and is in violation of international law.

What is the Difference Between Affirmative and Defensive Asylum?

Asylum is often described as a two-track process with applicants either facing affirmative or defensive processes. In each type of claim, the same persecution criteria must be established to gain asylum.

Affirmative asylum seekers are not subject to the deportation process in court from the outset. They present their cases affirmatively in a less adversarial setting to USCIS officials.

People who file defensive asylums already have their cases before the Executive Office for Immigration Review (EOIR). They must prove their case for asylum in a trial-like setting to an immigration judge to avoid deportation.

What is the Timetable for an Asylum Application?

Applicants are given one year from the time of their arrival in the United States to formally file for asylum. Failure to file in 12 months will typically prevent an asylum application. This is known as the “one-year bar.”

Exceptions to the one-year restriction include conditions changing in an applicant’s home country that are beyond the applicant’s control. An example would be the outbreak of a civil war in a previously stable country that renders it too dangerous to return home.

What Are The Chances of Winning Asylum in Virginia or Elsewhere?

More applicants lose asylum cases than are granted asylum and the odds of success became longer in recent years. Rates of asylum success differ between asylum offices and immigration courts. In 2016, the average asylum approval rate was 47 percent for affirmative asylum petitions before asylum officers and 48 percent for defensive asylum cases heard in the immigration courts.

Widely different rates of asylum approval by judges are highlighted in TRAC immigration statistics. While one immigration judge sitting in Arlington, Virginia, only granted 10.8 percent of applications, another granted 83.5 percent.

Asylum is Targeted by the Trump Administration

The Trump administration has pledged to tackle asylum and restrict future claims. Attorney General Jeff Sessions has outlined proposals for more sweeping, immediate reinterpretations of asylum law. In the short-term two classes of asylum seekers have been targeted by Sessions, victims of gangs and domestic violence.

Can Domestic Violence and Gang Victims Claim Asylum in the United States?

In recent years, increasing numbers of asylum seekers have crossed the U.S. border seeking protection from gang violence in Central America. In 2016, more than 60,000 people from the most dangerous and gang-afflicted countries of Central America, El Salvador, Guatemala and Honduras applied for asylum in the United States.

Some new arrivals claim they were victims of domestic violence.

In 2018, the Trump administration overturned asylum protections for domestic violence and gang violence victims in a ruling likely to prevent tens of thousands of immigrants from getting protection in the United States.

The ruling by Attorney General Jeff Sessions overturned a precedent set in the Cifuentes case. In 2005, Aminta Cifuentes, who suffered constant beatings from her husband, fled from Guatemala to the United States.

Cifuentes was granted asylum after nearly a decade of waiting on an appeal. The 2014 ruling by the Board of Immigration Appeals established domestic violence in a private setting was a ground for asylum.

Sessions’ ruling means not only must the government of the home country of the victims be unable or unwilling to help them, but the asylum seeker must prove that the government condoned private actions or showed an inability to protect the victims.

Hire an Experienced Virginia Immigration Lawyer for an Asylum Claim

Claiming asylum has never been easy. However, these are increasingly traumatic and difficult times to be an asylum seeker. An immigration lawyer can help you make your case and take on the immigration authorities. Please contact or call 757-464-9224 today to speak with the Virginia asylum lawyers at Gardner & Mendoza, P.C. for help with your claim.