Law Explained

What to know about asylum BEFORE you apply

What to know about asylum BEFORE you apply?

While many people have a vague idea about what the process is for claiming asylum, this article nicely lays out what the actual law behind the Asylum Convention is and how it became law in the U.S. Asylum can be thought of as originating one of two ways. They are termed “Affirmative” and “Defensive” applications for asylum.

Affirmative Asylum Applications

When a foreign national possesses a valid visa to enter the U.S., they are not unlawfully present. They have gone through immigration with a valid visa. However, at some point during their trip, they may become aware of circumstances in their country of origin that instill fear of returning due to potential persecution, torture, or even death in certain cases. Such individuals are entitled to apply for asylum with the USCIS. As part of my role, I meet with applicants and assist them in preparing a comprehensive application and a sworn declaration outlining all the relevant facts of their case. Additionally, I make it a point to submit any available evidence at the present time, such as copies of passports, birth certificates, and police reports, among others.

Eventually, the individual will receive a scheduled interview date, which may be months or even years in the future. I meet with my clients to assist them in preparing for this interview, ensuring that they recall all the details of their case and approach the interview in a calm and confident manner. During the interview, I accompany the applicant while a USCIS case worker evaluates their claims. Based on this assessment, the case worker will determine the success or failure of the individual’s asylum application. The decision is then communicated to the applicant through a determination letter sent via mail. In the event of a successful application, we can proceed with filing for a green card after one year of physical presence in the United States, providing the person with a pathway to citizenship. However, if the application is unsuccessful, the individual will be referred to the immigration court, where the matter will be further adjudicated.

Defensive Asylum Applications

When an individual receives a denial for their affirmative asylum application, they are referred to the Executive Office of Immigration Review (EOIR), which serves as a neutral court for immigration matters. However, the majority of cases heard in this court involve individuals who have crossed the southern U.S. border illegally, without a valid visa. Even if individuals crossing the southern U.S. border request asylum immediately, they are considered “inadmissible” to the U.S. Nevertheless, the U.S. Customs and Border Protection (CBP) conducts a “Credible Fear Interview” for every person seeking asylum. The percentage of individuals deemed to have a “credible fear” during these interviews is uncertain, but those who are found to have a credible fear may enter the U.S. In some cases, individuals may be detained if they wish to remain in the U.S. If you or someone you know is in this situation, it is essential to seek legal representation promptly.

Some individuals may not pass their credible fear interview and are turned away at the border. However, those who are granted clearance can enter the U.S., but are not permitted to work and must not become a burden on public resources. They will receive a Notice to Appear (NTA) in court, specifying the date, time, and address of their proceedings. These court proceedings, held at the specified date and time, are removal or deportation proceedings, and I provide representation for individuals in such cases. Once an individual is in these proceedings, they have one year from their arrival date to apply for asylum. It is crucial to submit an asylum application (I-589) as soon as possible. When I initially meet with someone, it greatly aids the process if they have paperwork from when they crossed the border, such as their NTA and a copy of their Credible Fear interview.

In some cases, a first hearing, known as a Master Calendar Hearing, may take place (although sometimes it is not held, and written pleadings are submitted to the court instead). During this hearing, I represent clients and meet with them beforehand for preparation. The Master Calendar Hearing is relatively brief, with the Respondent (the asylum applicant’s name in court) answering the judge’s questions about their identity, country of origin, and whether they fear returning if deported. Following the first hearing, a notice will be sent regarding the second hearing, known as the Individual Hearing. The Individual Hearing is more extensive and may involve the calling of witnesses, as well as arguments and disputes regarding the merits of the asylum claim. After the Individual Hearing, the judge will make a decision on the asylum application, considering previous rulings and the credibility of the applicant, among other factors. A successful Respondent will be eligible to apply for a green card after one year of physical presence in the U.S., providing them with a pathway to citizenship. An unsuccessful Respondent will face deportation from the U.S., but they do have the right to appeal to the Board of Immigration Appeals (BIA).

I began representing asylum clients in interviews and court proceedings in 1999, in the United Kingdom. Asylum principles are governed by an international treaty, and I have devoted years of study to asylum law, familiarizing myself with its intricacies. It is important to note that not everyone is eligible for asylum. When evaluating whether someone has a valid asylum claim, I consider whether they genuinely face a credible fear of persecution in their home country based on their membership in one of the enumerated grounds. These grounds include race, religion, nationality, membership in a particular social group, or political opinion. In many cases, individuals experience persecution because they belong to multiple of these groups. For instance, a Christian woman from Iran may have faced persecution in her country of origin due to her gender (membership in a particular social group) and her religious beliefs.

Having prepared asylum cases from more than twenty countries, I have extensive knowledge of regions worldwide where persecution occurs, including Mexico, Central America, and South America. If you would like to discuss the potential merits of your asylum case and determine whether it qualifies as a viable asylum claim, please contact me to arrange a consultation.

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