Who Is Eligible For Asylum In The USA?

 

According to United States law, aliens who demonstrate a genuine fear of being persecuted based on factors such as political views, race, religion, nationality or membership of a particular social group may be eligible for asylum.

 

Asylum can be sought by those just entering the US or by those already present within its borders. New arrivals may request asylum upon their arrival at a port of entry, while individuals already in the US must submit their Application for Asylum and Withholding of Removal to the Bureau of U.S. Citizenship & Immigration Services within one year of their arrival. This deadline may be waived in instances of changed or extraordinary circumstances.

Types Of Asylum And The Asylum Process In The USA

 

There are two main types of asylum in the United States: affirmative asylum and defensive asylum.

 

Affirmative Asylum

 

Affirmative asylum is a type of relief that is requested when an individual is already present in the United States and not facing removal proceedings. The individual must submit a Form I-589, Application for Asylum and for Withholding of Removal, to the U.S. Citizenship and Immigration Services (USCIS) within one year of their arrival in the United States. The USCIS will then review the application and determine if the individual is eligible for asylum.

 

Affirmative asylum is also known as “Positive asylum” and is when an individual submits an asylum request to the U.S. Citizenship and Immigration Services (USCIS) while physically residing in the United States.

 

It is possible to apply for asylum even without proper documentation although a denial of the application will result in initiation of removal proceedings and the threat of deportation. Applications for an affirmative asylum application to the United States must be submitted within one year of arrival in the United States except in very exceptional circumstances.

 

Defensive Asylum

 

Defensive asylum is a type of relief that is requested when an individual is facing removal proceedings. The individual must file a Form I-589 with the USCIS or with an immigration judge in order to request asylum. The immigration judge will then determine if the individual is eligible for asylum and has a well-founded fear of persecution in their home country.

 

“Defensive asylum” refers to the act of seeking asylum as a means of defense against potential removal from the United States.

 

Defensive asylum arises in these circumstances:

 

  • An undocumented immigrant being arrested and facing removal proceedings
  • An individual in violation of their immigration status being placed in removal proceedings
  • An undocumented immigrant using their asylum application as a defense in removal proceedings outside of an immigration arrest
  • An individual being intercepted at a port of entry without proper documentation and expressing a fear of removal. In this scenario the individual will undergo an initial interview with an asylum officer to determine credible fear of persecution, followed by placement in removal proceedings.

 

In the event of removal proceedings, an immigration judge will independently assess the individual’s request for asylum. If denied, the individual may be subject to deportation.

 

The United States Asylum Application Process

 

  • Application: The first step in the asylum process is to complete and submit a Form I-589 to the USCIS or to an immigration judge.
  • Initial Screening: The USCIS or immigration judge will conduct an initial screening of the asylum application to determine if the individual is eligible for asylum.
  • Interview: If the individual is found to be eligible for asylum they will be scheduled for an interview with the USCIS or immigration judge. During the interview, the individual will be asked questions about their asylum claim and the reasons for their fear of persecution.
  • Decision: After the interview, the USCIS or immigration judge will make a decision on the asylum application. If the individual is granted asylum they will be authorized to live and work in the United States. If the individual is not granted asylum, they may be eligible to appeal the decision or seek other forms of relief.

How to Fill Out Form I-589 for Asylum Immigration to the United States

 

The process of filing an asylum application in the United States involves the completion of Form I-589 Application for Asylum and for Withholding of Removal. The form is used to provide information about the individual seeking asylum, their reasons for seeking asylum and the evidence to support their claim.

 

Form I-589 consists of the following sections:

 

  • Information about the Applicant: In this section, the applicant must provide their name, date of birth, country of birth and other personal information.
  • Information about the Basis for the Asylum Claim: The applicant must provide detailed information about the reasons for their fear of persecution and the evidence to support their claim.
  • Information about the Persecution: The applicant must provide information about the specific incidents of persecution they have experienced or fear experiencing in their home country.
  • Information about Family Members: The applicant must provide information about their family members, including their name, relationship and locations.
  • Information about Travel and Identity Documents: The applicant must provide information about their passport and other identity documents.
  • Signature and Certification: In this section, the applicant must sign and certify that all the information provided in the form is true and correct to the best of their knowledge.

What Is Needed To Succeed In an Asylum Immigration Process to the USA

 

To succeed in the asylum process in the USA an applicant must be able to prove that they have faced (or are at risk of facing) persecution in their home country. The key to making a successful asylum case lies in presenting strong and convincing evidence.

 

This evidence can come in various forms including the applicant’s own testimony, medical certificates, police reports, court records, statements from individuals with personal knowledge of the case, proof of membership in a particular group and background materials regarding the country’s conditions.

Alternatives to Claiming Asylum Immigration in the United States

 

There are alternative immigration options available to those seeking to remain in the United States. One option is withholding of removal, which is comparable to asylum in many ways. This is applied for using the same form as asylum and requires demonstrating a fear of persecution if returned to the applicant’s home country.

 

If granted, the individual is allowed to remain and work legally in the U.S. but cannot apply for permanent residency or leave the country without risking inadmissibility. “Withholding of removal” is often a viable option for those who are not eligible for asylum but still face potential danger if returned to their country of origin.

 

Another alternative is seeking protection under the United Nations Convention Against Torture (CAT). Unlike asylum and withholding, CAT protection does not necessitate demonstrating a fear of persecution. However, it is a difficult path to obtaining relief and is only recommended if the individual has committed serious crimes while residing in the U.S.

Understanding Withholding of Removal in US Immigration

 

Under U.S. law, aliens cannot be sent back to countries where their life or freedom is endangered because of their race, religion, nationality, membership in a certain social group or political views.

 

Withholding of removal is only an option for those facing removal proceedings. If the individual can prove that their life or freedom is threatened in a particular country, withholding of removal must be granted by the immigration judge.

 

The eligibility criteria for withholding of removal are different from those for asylum. While asylum requires a well-founded fear of persecution, withholding of removal requires the individual to demonstrate a clear probability of persecution if they are returned to their home country.

 

This means that the asylum applicant must show that it is possible they will be persecuted, while the withholding of removal applicant must show that it is probable they will be persecuted.

 

There are also differences in the benefits of receiving either asylum or withholding of removal. Withholding of removal offers the right to remain and work in the U.S., but also comes with restrictions like being unable to apply for permanent residency and being barred from leaving the country without losing the right to re-enter.

 

Withholding of removal can be a good option for those who missed the one year deadline for filing for asylum or for those who are ineligible for asylum due to a criminal record.

Relief in US Asylum Immigration Applications under the United Nations Convention Against Torture

 

An individual who is afraid of being subjected to torture by a public official or person acting in an official capacity, either with their consent or approval, if they are returned to their country of origin, might be eligible for relief under the United Nations Convention Against Torture.

 

This provision permits the individual to stay in the United States if they are prone to be subjected to torture in their country of origin. In contrast to asylum and withholding of removal, to meet the criteria for relief under the Convention Against Torture, an individual does not have to demonstrate that the torture they face. There is also no time limit for filing an application for CAT relief.

 

The standard for relief under the Convention Against Torture is that it is more likely than not that the applicant would face torture, which is a stringent requirement.

 

The relief under the Convention Against Torture is not frequently granted because it necessitates a minimum of 51% chance that the individual will be subjected to torture if they are returned to their country of origin.

 

The main reason someone might seek relief under the Convention Against Torture is that if the applicant meets the high standard for relief, they must be granted relief, even if they have been convicted of serious crimes (including aggravated felonies) in the U.S. Essentially the immigration judge is obligated to grant the application regardless of any concerns they may have.

 

However, if the U.S. Government deems that an individual who has been granted relief under the Convention Against Torture is a threat to the community due to serious crimes they have committed, then the U.S. Government may detain them even after they have been granted relief. Moreover, an individual who has been granted relief under the Convention Against Torture cannot pursue permanent residency or leave the U.S. The relief under the Convention Against Torture does not extend any benefits to the applicant’s spouse or children.