People who risk persecution in their own country as defined by U.S. immigration laws may be able to seek asylum or refugee status in the United States. The difference between eligibility to apply for asylum or refugee status is a matter of location.
- Asylum status: Applicant may apply for asylum status once they are in the United States or at the border, whether they entered legally or illegally.
- Refugee status: People outside the United States must apply for refugee status rather than asylum.
Today, about 900,000 asylum seekers are waiting for their day in court, and they typically wait for years. About 637,000 people were granted asylum between 1990 and 2017. Asylum seekers must appear in court to demonstrate they should be granted asylum, where immigration judges deny 80% of the applications. Once you are granted asylum, you may work in the United States and apply for permanent residence after a year.
Who is Eligible for Asylum?
In order to be granted asylum, you must demonstrate:
- You have a well-founded fear that if you return to your home country, you will be persecuted.
- You fear persecution for one of five reasons:
- Membership in a particular social group
- Political opinion
Ghazi Law Group, APLC
Beyond the five categories of persecution for which people can seek asylum, the statutes do not define persecution with one exception, which is being forced to submit to “coercive population control” such as forced abortion or sterilization. As for other types of persecution, case law has established that it may include violence, torture, improper imprisonment, threats or denial of basic human rights. According to INS v Cardoza Fonseca, 480 U.S. 421, 107 S.Ct. 1207 (1987) for an immigration court to consider fear of future persecution to be "well-founded" you must show that you have a one in ten chance of being harmed.
It is not necessary that the government itself is persecuting the asylum seeker. If the asylum seeker’s government cannot or will not control persecution by other groups, that has historically been enough. However, that is being called into question by the current administration.
The Asylum Application Process
To apply for asylum, file a Form I-589, Application for Asylum and for Withholding of Removal, within one year of your arrival to the United States. (In certain circumstances, it is possible to apply after one year.) You must describe in great detail what harm you will face if you are forced to return to your country. You should support your case with all the evidence you can including your own statements, letters from other people, medical reports and photographs.
If you are already in the United States, you may apply with United States Citizenship and Immigration Services (USCIS). If it is possible for you to legally enter the country (flying in on a tourist visa, etc.) and then later apply for asylum, that is your best option.
If you are unable to legally enter the United States to seek asylum, you can explain to U.S immigration officials at the border or when apprehended for illegal entry that you fear returning to your own country and want to seek asylum. You may be put into a detention facility to wait for a “credible fear” hearing where a USCIS asylum officer will decide whether you have a real fear of persecution that warrants having an immigration judge hear your case. Credible fear hearings may take place in a couple days depending on number of applicants. If the officer finds against you, you will be deported. However, the Ninth Circuit recently ruled that asylum seekers who fail their “credible fear” hearing have a right to appeal.
Over 75% of asylum seekers pass the initial screening and are granted a court hearing for a final determination before an immigration judge. The current administration would like to make the initial “credible fear” screening much tougher.
Bringing Your Family to the United States
If you are granted asylum, you may petition to bring your spouse and minor, unmarried children under 21 years of age to the United States by filing a Form I-730, Refugee/Asylee Relative Petition. You should file this form within two years of being granted asylum, though the deadline may be extended for certain humanitarian reasons.
What Will Happen to Me If I Cross the Border and Ask for Asylum?
After passing the “credible fear” hearing, migrants have usually been allowed to enter the United States and work while they wait for their final immigration hearing, since it can take years. However, that may be changing. In April 2019, Attorney General William P. Barr issued an order that directs immigration judges to deny some migrants a chance to post bail thereby keeping them in detention until their hearings, which, as we have seen, could be years. This order is to go into effect in July 2019, but it is likely to be challenged in federal court.
Will I Lose My Children if I Apply for Asylum at the Border?
According to federal law and court precedent, families with parents and children and unaccompanied children who seek asylum may not be detained for over 20 days. Since it takes so long to get an asylum hearing, most are released before their hearings. The administration tried to get around those restrictions last year by separating children from their parents to keep migrants for longer periods. A federal judge in California declared the practice of separating children from their parents to be illegal, and this practice has not been reinstated.
You Have One Shot – Get Experienced Legal Help
Successfully applying for asylum is a complex process, and most people fail. To increase your likelihood of getting asylum, you need an experienced immigration lawyer. The immigration lawyers at Ghazi Law Group in Sherman Oaks, California, can help. Call us for a consultation at (818) 839-6644 or email us at firstname.lastname@example.org.
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