With war, and other large-scale violence inflicting so much suffering in parts of the world, refugees seek relief inside America’s borders. While federal law provides paths for immigrants to apply for asylum status, the process can be intimidating, especially for a person unfamiliar with the English language and legal terminology. This page was designed to help immigrants and their families better understand some of the asylum concepts and to decide if they should hire an asylum attorney.
This page covers the following topics:
- Define Asylum – Refugees and Asylum status
- Affirmative and Defensive Asylum
- Credible Fear Hearing
- Temporary Protected Status
- How to Apply for Asylum
- Should You Contact an Asylum Attorney?
- Asylum Facts and Statistics
While this page explores various legal concepts, it is not a substitute for speaking directly with a asylum attorney. An experienced asylum attorney can help the refugee navigate the vast federal bureaucracy and avoid costly, time-consuming mistakes.
How do you define asylum? First you must understand the legal definition of a refugee or asylee. Section 101(a)(42) of the Immigration and Nationality Act defines a refugee/asylee as any person who is outside their country of nationality (or country of last habitual residence), and who is unable or unwilling to return because of persecution due to race, religion, nationality, membership in a particular social group, or political opinion. In special circumstances, the U.S. President can designate persons within their own country as refugees.
If you are eligible for asylum you may be permitted to remain in the United States. Once a refugee is granted asylum, which is a form of U.S. protection, he or she cannot be returned to their country of nationality, is authorized to engage in employment, and may be able to travel abroad with the prior consent of the U.S. Attorney General. An applicant for asylum can be a person already living in the U.S. or seeking admission at a U.S. port of entry (airport, border crossing or sea port).
Defining asylum and the process of asylum are different things. There are two different processes for obtaining asylum: affirmative and defensive. Sometimes an immigrant will go through both processes before status is granted. Each is discussed in the next section of this page. If you want to learn more about refugee immigration, read our main refugee immigration and definition page.
Affirmative or Defensive Asylum
Affirmative processing is pursued when the foreign national requesting asylum is already physically inside the U.S. Though immigrants may apply for asylum regardless of how they arrived in the country, they must apply within one year of their arrival date. Certain exceptions to this rule apply; such as whether or not the asylum seeker can show extraordinary circumstances caused the delay in filing.
The process begins with the immigrant filing an Application for Asylum and for Withholding Removal (Form I-589) with U.S. Citizenship and Immigration Services (USCIS). In the event that asylum is not granted, the case will be referred to an immigration judge at the Executive Office for Immigration Review (EOIR). This signals the start of defensive processing.
This process occurs when an immigrant faces removal from the U.S. as part of an immigration court proceeding under the EOIR. It can be initiated by USCIS after affirmative processing is denied, or it can begin when an immigrant is apprehended by law enforcement inside the U.S. or at a port of entry without proper documentation. In the event that defensive processing is referred through UCICS, the original paperwork filed as part of the affirmative process will carry over before the immigration judge.
A defensive asylum proceeding is similar to a hearing one would encounter in a courtroom. A judge listens to arguments from two sides—an asylum attorney representing Immigration and Customs Enforcement (ICE) and the asylum-seeking immigrant (and his or her asylum attorney).
The judge will determine whether or not to grant asylum. In the case that asylum is denied, the judge may consider if the individual is eligible for other types of protection. If the immigrant is not eligible for protection, he or she can appeal the decision to the Board of Immigration Appeals (BIA). We highly recommend that you hire an asylum attorney to greatly increase your chances of prevailing in front of the judge.
Credible Fear Hearing
In some cases, an immigrant apprehended by a law enforcement agency, such as U.S. Customs and Border Patrol, may be placed into an expedited removal process. If a detained immigrant tells officials that he or she fears returning to their country because of persecution, an asylum officer may conduct a “credible fear hearing.”
There are a number of circumstances in which the asylum officer can deny a finding of credible fear. These include whether or not the asylum seeker has persecuted others on the basis of religion, nationality or membership in a particular social group, or was convicted of a serious crime or participated in terrorist activity.
If there is a finding that credible fear exists, the asylum seeker’s case will be forwarded to an immigration judge for a full hearing. If you or a loved one faces a credible fear hearing, he or she is entitled to legal representation. Call this office to consult with an asylum attorney.
Temporary Protected Status
Temporary Protected Status (TPS) is authorized by the Department of Homeland Security when conditions in a particular country temporarily prevent residents from returning safely. Such circumstances include civil war and environmental disasters.
Once granted TPS, designees are not removable from the U.S., can obtain employment authorization and may be allowed to travel abroad. Those who believe they are eligible for TPS must file an Application for Temporary Protected Status (Form I-821) with USCIS.
Currently, USCIS lists 13 countries with protected status. These include: El Salvador, Guinea, Haiti, Nicaragua, South Sudan, Syria and Yemen. Visit this page for more country-specific information on TPS.
How to Apply for Asylum
You should first consult with an asylum lawyer. He or she will explain how to define asylum. The immigrant who is already in the country and wishes to apply for asylum must fill out an Application for Asylum and for Holding Removal (Form-I-589) within a year of arrival in the country. The form must be submitted to USCIS. As mentioned in the previous section, if the application is denied, it will be forwarded to an immigration judge. We highly recommend that you do not wait, hire an asylum attorney as soon as possible to file this request.
Should You Contact an Asylum Attorney?
While a person seeking asylum is not required to have a lawyer present when filing documents or appearing before an immigration judge, an asylum attorney can provide valuable guidance and help the asylum seeker avoid costly, time-consuming mistakes. If you or a loved one are seeking asylum, and would like to find out if an asylum attorney can help, call our office to learn more.
Asylum Facts and Statistics
Since 2013, significant media attention has focused on the plight of refugees from Central America, where violence continues to drive people from their homes—specifically from a region known as “the Northern Triangle of Central America.” In an April 2016 blog written on the United Nations High Commissioner for Refugees (UNHCR) website, statistics from 2015 were cited that showed the U.S. was on track to receive twice as many asylum applications from central America as in 2014, and 250 percent more than in 2013.
According to migrationpolicy.org, in the 2013 fiscal year, a total of 25,199 persons were granted asylum in the U.S. through one of two processes (discussed below in further detail). The top three countries represented were the People’s Republic of China, which accounted for 34.1 percent of total asylees, followed by Egypt at 13.5 percent, and Ethiopia at 3.5 percent.
If you’re looking to come to the United States through an employment green card, visit our employment-based visa page for an overview of that process. If you’re looking to come to the USA through family (parent, child, spouse) read our family-based immigration page. Child immigration is a hot topic in asylum cases. If you only want to come for a temporary period, and want to learn what kind of temporary visa you need, visit our non-immigrant temporary visa page for an overview of the options.