ASYLUM                          

Excerpts from the CIS website

Asylum is a form of protection that allows individuals who are in the United States to remain here.  To seek asylum, one must have a bonafide fear of persecution based on his/her membership in a religious, political, racial or a particular social group. The alien must have experienced persecution in the past or have a well-founded fear of persecution in the future in his/her home country.  The fact that you are suffering economically is NOT considered a reason for granting refugee status or asylum.  The persecution must be a serious threat to your life or freedom and must be due to your membership in a group that is persecuted.  In some cases, persecution may be based on your gender, including fear of cultural practices such as female "circumcision".

 If outside of the U.S., one applies for refugee status.  Inside the U.S., one applied for Asylum.  The standards are the same for both status, both to be granted this status, you must not have firmly resettled in a third country.  Also, this status is limited by an annual quota.  After being granted asylum, a person may adjust his/her  status to lawful permanent resident provided the persecution factors remain.    

There are two paths to Asylum: (1)  the “affirmative” asylum process where applicants who have not been placed in removal proceedings submit their applications affirmatively to CIS for decision by an Asylum Officer and (2) the “defensive” asylum process where applicants are already in removal proceedings and request asylum before an Immigration Judge during removal proceedings as a defense against removal from the United States.

U.S. “Affirmative” Asylum Processing with CIS

In the affirmative asylum process, individuals who are physically present in the United States, regardless of how they got here and regardless of their current immigration status, may apply for asylum.  They do so “affirmatively” by submitting an application to CIS within one year from the date of last arrival in the U.S. unless they can show changed circumstances that materially affect their eligibility or extraordinary circumstances relating to the delay in filing, and that they filed within a reasonable amount of time given those circumstances. They file an asylum application Form I-589 by sending it to a USCIS Service Center and are seen by Asylum Officers – in non-adversarial interviews.  The interviews take place at one of the eight Asylum Offices throughout the U.S. or, if the applicant lives far from one of those offices, at a District Office.

It is important to note that affirmative asylum applicants are almost never detained.  They are free to live in the U.S. pending the completion of their asylum processing with CIS and, if found ineligible by CIS, then with an Immigration Judge.  Normally, an affirmative asylum applicant is interviewed by CIS within 43 days of application and, if not approved, is referred by CIS to an Immigration Judge at the Executive Office for Immigration Review for further and de novo consideration.  The time period is somewhat longer if the applicant does not reside near one of the eight Asylum Offices and an Asylum Officer is required to go to a distant District Office to conduct the interview.  Asylum applicants referred to an Immigration Judge for such processing are also not detained.       Back to Top

U.S. “Defensive” Asylum Processing with EOIR

Immigration Judges hear asylum applications only in the context of “defensive” asylum proceedings.  That is, applicants request asylum as a defense against removal from the United States.  Immigration Judges hear such cases in adversarial (court-room-like) proceedings: the IJ is the judge that hears the applicant’s claim and also hears any concerns about the validity of the claim raised by the Government, which is represented by an attorney.  The IJ then makes a determination of eligibility.  If the applicant is not found eligible for asylum, the IJ determines whether the applicant is eligible for any other forms of relief from removal and, if not, will order the individual removed from the United States .

Aliens generally are placed into defensive asylum processing in one of two ways: (1) they are referred by Asylum Officers who did not grant asylum to them, or (2) they are placed in removal proceedings because they are undocumented or in violation of their status when apprehended in the U.S. or were caught trying to enter the U.S. without proper documentation (usually at a port-of-entry) and were found to have a credible fear of persecution or torture. Back to Top

Expedited Removal

Most undocumented migrants stopped by immigration officials at a U.S. port-of-entry may be subject to Expedited Removal.  This means that, for persons other than genuine asylum seekers, refusal of admission and/or removal from the United States can be effected quickly.

However, some of the individuals arriving at an Immigration POE without proper documentation are genuine asylum-seekers fleeing persecution in their home country.  Because of the circumstances of their flight from their homes and departure from their countries, they may arrive in the U.S. with no documents or with fraudulent documents obtained as the only way out of their country.

Any person subject to expedited removal who raises a claim for asylum – or expresses fear of removal – will be given the opportunity to explain his or her fears to an Asylum Officer.  Recognizing that some refugees may be hesitant to come forward with a request for protection at the time of arrival, immigration policy and procedures require Inspectors to ask each individual who may be subject to expedited removal the following series of “protection questions” to identify anyone who is afraid of return:

  • Why did you leave your home country or country of last residence?
  • Do you have any fear or concern about being returned to your home country or being removed from the United States?
  • Would you be harmed if you were returned to your home country or country of last residence?
  • Do you have any questions or is there anything else you would like to add?

If the individual expresses a fear of return, the individual is detained and given an interview by an Asylum Officer.  The role of the Asylum Officer is as an Asylum Pre-Screening Officer (APSO) who interviews the person to determine if he or she has a credible fear of persecution or torture.  This is a standard that is broader -- and the burden of proof easier to meet -- than the well-founded fear of persecution standard needed to obtain asylum.  Those found to have a “credible fear” are referred to an Immigration Judge to hear and then judge their asylum claims.  This places the asylum seeker on the “defensive” path to asylum. Most individuals who are found to have a credible fear of these are almost immediately released to relatives or community groups, or on their own recognizance.  However, some are not released, and instead are detained while their asylum claims are pending with the Immigration Judge.

If the individual who expresses a fear of return is arriving from Canada at a U.S.-Canadian land border port of entry, or is being removed from Canada and transiting through the United States, the APSO will conduct a threshold screening interview to determine whether he or she must seek protection in Canada instead of the United States. If the individual is eligible to seek protection in the United States, the APSO then will determine whether he or she has a credible fear of persecution or torture.

Every year, thousands of people come to the United States in need of protection because they have been persecuted or fear they will be persecuted on account of their race, religion, nationality, membership in a particular social group, or political opinion. Those found eligible for asylum are permitted to remain in the United States .

Unlike the U.S. Refugee Program, which provides protection to refugees by bringing them to the United States for resettlement, the U.S. Asylum Program provides protection to qualified refugees who are already in the United States or are seeking entry into the United States at a port of entry. Asylum-seekers may apply for asylum in the United States regardless of their countries of origin. There are no quotas on the number of individuals who may be granted asylum each year (with the exception of individuals whose claims are based solely on persecution for resistance to coercive population control measures).

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