What is the Asylum Process in the United States?
An asylee or a person who receives asylum will get protection from having to return to their home country, will be authorized to work in the United States, can apply for a Social Security card, can request permission to travel overseas, and may be able to petition to bring family members to the country. Asylees can also become eligible for certain government programs such as Medicaid or Refugee Medical Assistance.
Ways to Get Asylum
United States Citizenship and Immigration Services (USCIS) notes that there are three ways people can obtain asylum in the United States. The ways include an affirmative process, an Asylum Merits Interview after a positive credible fear determination, or the defensive process.
Obtaining asylum through the affirmative asylum process requires an alien to be physically present in the United States. They can apply for asylum regardless of how they arrived in the United States or their current immigration status.
An alien must apply for asylum within one year of the date of their last arrival in the United States unless they can show changed circumstances that materially affect their eligibility for asylum or extraordinary circumstances relating to a delay in filing and they filed within a reasonable amount of time given those circumstances. An alien can apply for affirmative asylum by submitting Form I-589, Application for Asylum and for Withholding of Removal, to USCIS.
Failure to file Form I-589 within one year of arrival in the United States means an alien may not be eligible to apply for asylum under section 208(a)(2)(B) of the Immigration and Nationality Act (INA). An alien does not have to submit a completed fingerprint card (FD-258) or fingerprint fee with their Form I-589 because USCIS will accept the Form I-589 without an attached fingerprint card.
A person may not be eligible to apply for asylum if they:
- Did not follow the one-year filing deadline for Form I-589, and USCIS will calculate the deadline from the date of an alien’s last arrival in the United States or April 1, 1997, whichever date is later;
- Had an immigration judge or the Board of Immigration Appeals deny a previous asylum application; or
- Can be removed to a safe third country under a 2-party or multi-party agreement between the United States and other countries.
Once USCIS receives a completed application, an alien will receive two notices: Acknowledgement of receipt of their application and notice to visit their nearest application support center (ASC) for fingerprinting. Depending on where an alien lives, USCIS will schedule them for an interview with an asylum officer at either a USCIS asylum office or a USCIS field office.
An interview notice will tell an alien the date, location, and time of their asylum interview. The USCIS Asylum Division schedules asylum interviews in the following order of priority:
- 1st priority: Applications originally scheduled for an interview, but interviews needed to be rescheduled at an applicant’s request or the needs of USCIS;
- 2nd priority: Applications pending 21 days or less since filing;
- 3rd priority: All other pending affirmative asylum applications scheduled for interviews starting with newer filings and working back towards older filings.
An alien can bring an attorney or accredited representative to the interview. They must also bring their spouse and any children seeking derivative asylum benefits to the interview.
If an alien cannot proceed with the interview in English, they must bring an interpreter. An interview typically lasts about one hour, although the time can vary depending on the case.
An alien must satisfy the definition of a refugee to be eligible for asylum. An asylum officer will determine whether an alien is eligible to apply for asylum, meets the definition of a refugee in section 101(a)(42)(A) of the INA, and is barred from being granted asylum under section 208(b)(2) of the INA.
A supervisory asylum officer will review the asylum officer’s decision to ensure it is consistent with the law. Depending on the case, a supervisory asylum officer could refer the decision to asylum division staff at USCIS headquarters for additional review.
In most cases, an alien will return to the asylum office to pick up the decision two weeks after the asylum officer interviews them. Longer processing times may be required if they are currently in valid immigration status, they were interviewed at a USCIS field office, they have pending security checks, or they have a case that is being reviewed by asylum division staff at USCIS headquarters, but USCIS will normally mail a decision to aliens in these situations.
When a case is not approved, and an alien does not have legal immigration status, USCIS will issue a Form I-862, Notice to Appear (NTA), and refer the case to an immigration judge with the United States Department of Justice’s Executive Office for Immigration Review (EOIR). An immigration judge will conduct a de novo hearing of the case, meaning that the judge conducts a new hearing and issues a decision that is independent of the decision made by USCIS.
In certain circumstances, when USCIS does not have jurisdiction over a case, the asylum office will issue a Form I-863, Notice of Referral to Immigration Judge, for an asylum-only hearing. If an alien was previously issued an NTA that was not filed and docketed with the EOIR immigration court, or their previously issued NTA was filed and docketed with EOIR either shortly before (within 21 days) or after they filed their Form I-589 with USCIS, USCIS will refile the NTA and send the Form I-589 to the immigration court for adjudication.
An alien can live in the United States while their Form I-589 is pending before USCIS. If they are found ineligible, they can remain in the United States while their Form I-589 is pending with the immigration judge.
Asylum Merits Interview
With an Asylum Merits Interview, an alien in expedited removal proceedings who indicates an intention to apply for asylum, expresses a fear of persecution or torture, or expresses a fear of returning to their country, can be referred to USCIS for a credible fear screening. A USCIS asylum officer then conducts a credible fear interview to determine whether they have a credible fear of persecution or torture.
An alien could receive their credible fear interview while they are in detention. When an asylum officer finds that an alien has a credible fear of persecution or torture, USCIS can either:
- Retain their application for asylum and schedule them for a second interview, known as an Asylum Merits Interview, to determine whether they are eligible for asylum. When necessary, the asylum officer can also determine whether an alien demonstrates eligibility for withholding of removal or protection under the United Nations Convention Against Torture (CAT) based on a record before USCIS; or
- Issue a Notice to Appear before an EOIR immigration judge for consideration of an alien’s asylum, withholding of removal, and CAT protection claims. When an alien files Form I-589 and for Withholding of Removal with the immigration court, it places them in the “defensive” asylum process.
If an asylum officer finds that an alien does not have a credible fear of persecution or torture, they can request a review by an immigration judge. If they do not request a review of the determination, Immigration and Customs Enforcement (ICE) can remove the alien from the United States.
If an alien does request a review of the negative credible fear determination and an immigration judge finds that they have a credible fear of persecution or torture and vacates the asylum officer’s negative credible fear determination, the case may be referred back to and accepted by USCIS for an Asylum Merits Interview, or the alien could be issued a Notice to Appear before an immigration judge for consideration of their asylum, withholding of removal, and CAT protection claims.
If an immigration judge finds that an alien does not have a credible fear of persecution or torture, there is no further review of the immigration judge’s determination. Only adults and families placed in expedited removal proceedings after May 31, 2022, will be subject to Asylum Merits Interviews with USCIS after positive credible fear determinations.
Unaccompanied children will not be subject to the same procedures because they are statutorily exempt from being placed in expedited removal proceedings.
A defensive application for asylum happens when an alien requests asylum as a defense against removal from the United States. For asylum processing to become defensive, an alien must be in removal proceedings in immigration court with the EOIR.
People are generally placed into defensive asylum processing in one of two ways:
- Referral to an immigration judge by USCIS after they have been determined to be ineligible for asylum at the end of the affirmative asylum process
- Placement in removal proceedings because they were apprehended in the United States or at a U.S. port of entry without proper legal documents or in violation of their immigration status, or they were apprehended by U.S. Customs and Border Protection (CBP) while trying to enter the United States without proper documentation, placement in the expedited removal process, and they were found to have credible fears of persecution or torture by an asylum officer.
Immigration judges will hear defensive asylum cases in adversarial proceedings. A judge will hear arguments from both an alien and the United States government as represented by an attorney from ICE.
An immigration judge decides whether an alien is eligible for asylum. If the immigration judge finds them eligible, they grant asylum.
If the immigration judge finds them ineligible for asylum, they determine whether the alien is eligible for any other forms of relief from removal. If an immigration judge finds them ineligible for other forms of relief, they can order the alien to be removed from the United States, and either party can appeal the immigration judge’s decision.
Important Asylum Differences
When it comes to the affirmative process, an alien has not been placed in removal proceedings before an immigration judge, an Asylum Merits Interview means an alien may not have been placed in removal proceedings before an immigration judge or is subject to expedited removal and has been found to have credible fears of persecution or torture, and the defensive process means an alien has placement in removal proceedings before an immigration judge.
For the affirmative process, an alien appears before a USCIS asylum officer for a non-adversarial affirmative asylum interview. In an Asylum Merits Interview, an alien appears for a credible fear screening interview with a USCIS asylum officer, and the defensive process means an alien appears before an immigration judge with EOIR for an adversarial hearing.
In the affirmative process, an alien must provide a qualified interpreter for the affirmative asylum interview, USCIS provides a qualified interpreter for the Asylum Merits Interview, and in the defensive process, the immigration court will provide a qualified interpreter for the asylum hearing and all other court proceedings.
Call Us Today to Schedule a Free Consultation with Our Phoenix Asylum Attorney
If you need assistance filing for asylum in the greater Phoenix area, make sure to retain legal counsel. Diamondback Legal understands the many complexities of asylum cases and will know how to help you earn the rights you desperately need and deserve.
Our firm is available 24 hours a day, seven days a week, so you can always get answers to your questions. You may call us at (602) 609-6534 or contact us online to take advantage of a free consultation that will let us better review the details of your case and really understand your situation so we can provide comprehensive legal representation.