Applying for asylum in the United States
Asylum may be granted to people who are already in the United States and are unable or unwilling to return to their home country because of persecution or a well-founded fear of persecution on account of one or more of five "protected grounds."
If you are granted asylum you will be allowed to live and work in the United States. You will also be able to apply for permanent resident status one year after you are granted asylum and you may be able to bring your spouse and children to the United States as "derivative" asylees.
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Warning - DO NOT file a frivolous application for asylum, meaning one that has no real basis or is knowingly false. For example, some people have been known to "borrow" someone else's story of persecution in an effort to gain status in the United States. Others embellish their story by adding details that are untrue. If you do this and you are caught you will never be granted any sort of U.S. visa or green card.
PAY ATTENTION TO THE ONE-YEAR DEADLINE.
The deadline to apply for asylum is one year from the date you entered the United States or within one year of the expiration date of your visa (if you had one). There are some exceptions to this rule.
DOCUMENT YOUR CLAIM.
It is your burden to prove your claim - this means that you will need to provide all documents that are reasonably available to you to prove your identity, your nationality, and the facts of your case. If you are still outside the U.S.A. and are considering an asylum claim, try to gather your supporting documents first and bring them with you or send them by mail or email to somebody you trust.
What types of persecution qualify a person for asylum?
In addition, the persecution must be on account of one of five "protected grounds" including your religion, race, nationality, political opinion, or membership in a particular social group (which may include your tribe or clan, your gender, your sexual orientation, or other group of people who are similarly situated).
Persecution based on any other ground does not qualify for asylum. For example, someone might be afraid to return to his or her home country because an angry neighbor has threatened to take revenge over an old grudge, but that would not qualify the person for asylum. A more classic asylum case would be that of someone who was arrested or threatened after participating in a demonstration against the government; was forcibly recruited into the country's military; was a victim of violence by another tribe; was a victim of or lost a family member to violence by religious extremists; or experienced discrimination or harm as a result of religion.
Who is eligible for asylum?
You may apply for asylum regardless of your immigration status, even if you are in the United States illegally.
You must apply for asylum within one year of your last arrival in the United States. There are exceptions to this rule, for example, 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, changes in your own circumstances, or certain other events.
A person who applies for affirmative asylum is not placed in removal proceedings before an immigration judge. The applicant, who must be in the United States, files an application (I-589 Application for Asylum and for Withholding of Removal) with the appropriate USCIS Service Center. The applicant will appear before a USCIS asylum officer for a non-adversarial interview.
If the application is not approved and the applicant does not have legal immigration status in the United States, USCIS will issue a Form I-862, Notice to Appear, and forward (or refer) the case to an immigration judge (see DEFENSIVE ASYLUM).
A defensive application for asylum occurs when the applicant requests asylum as a defense against removal from the United States. Individuals are generally placed into defensive asylum processing in one of two ways:
(1) They are referred to an immigration judge by USCIS after they have been determined to be ineligible for asylum at the end of the AFFIRMATIVE ASYLUM process; or
(2) They are placed in removal proceedings because they were apprehended (or caught) in the United States or at a U.S. Port of Entry without proper legal documents or in violation of their immigration status, or they were caught by U.S. Customs and Border Protection (CBP) trying to enter the United States without proper documentation, were placed in the expedited removal process, and were found to have a credible fear of persecution or torture by an asylum officer. (This is what will likely happen if you turn yourself in at a U.S. Port of Entry and tell the immigration inspector that you want to seek asylum in the U.S.A.)
Immigration Judges hear defensive asylum cases in adversarial (courtroom-like) proceedings. The judge will hear arguments from both of the following parties: The individual who is applying for asylum (and his or her attorney if represented) and the U.S. Government, which is represented by an attorney from the Department of Homeland Security's office of Immigration and Customs Enforcement (ICE).
The applicant (and possibly the Government) may present witnesses; and the Immigration Judge will then decide whether the applicant is eligible for asylum. If the Immigration Judge finds that the applicant is eligible and deserving of asylum, the judge will order asylum to be granted. If the judge finds that the applicant is not eligible for or deserving of asylum, the judge will determine whether the applicant is eligible for any other form of relief from removal. If the applicant is not eligible for any form of relief, the Immigration Judge will order the applicant to be removed from the United States. The Immigration Judge's decision can be appealed by either party.