Asylum protects people within the United States or at a port of entry who have a well-founded fear of being persecuted in their country of nationality. The reasonable fear must be due to race, religion, nationality, membership in a particular social group, or political opinion. Additionally, to qualify for asylum, you must be outside of your country of nationality and unable or unwilling to return.
Background Image: Traditional Karen Clothing (now Myanmar)
History of Asylum
Basic Human Right
Much of today’s asylum law is based on the aftermath of World War II. The war left as many as eight million people displaced; two million of whom could never return to their home countries. Displaced people often found themselves in countries who did not want them. As a result, they often received little protection, assistance, and no legal status. The United Nations sought a solution along with various countries around the world.
President Harry Truman appointed Eleanor Roosevelt as a delegate to the first session of the United Nations. Mrs. Roosevelt was fundamental in drafting and promoting the adoption of the United Nations Universal Declaration of Human Rights. The Declaration’s adoption was fiercely resisted by some, intensely debated, and, at times, seemed unlikely to garner the necessary votes. The Declaration states that, “[e]veryone has the right to seek and to enjoy in other countries asylum from persecution.” This premise is core to what has become the United Nations Convention and Protocol Relating to Refugees.
Well-Founded Fear of Persecution
Likelihood of Persecution
When you apply for asylum, you can show that you have a well-founded fear of persecution in one of two ways. First, you can show that you have suffered persecution in the past. Second, you can show that you have at least a ten percent chance of being persecuted in the future. The immigration judge or the asylum officer will try to determine how likely you are to be persecuted based on the details of your story. This is why it is so important to clearly describe your fear of prosecution. Do not use vague statements or generalities. Organize your story and use specific facts.
What is Persecution?
Persecution is difficult to define and reduce to simple rules. For example, persecution can include imprisonment even if a country is enforcing its own laws. It can also include arrest, property confiscation, interrogations, detention, and unlawful searches. However, simply being bothered or harassed is not persecution. Some courts have said that unless an act is severe enough to threaten someone’s life or freedom, it is not considered persecution. Courts can also define persecution based on a combined effect of several acts. In fact, some federal courts have ruled that one act alone is not bad enough to be considered persecution when compared to other acts.
One Catholic Charities Milwaukee client was beaten so severely that he had to be hospitalized. The immigration judge found that this single act was not persecution. However, based on the other facts of the case, the same judge thought that there was a more than a ten percent chance of future persecution, which qualifies as a well-founded fear. In sum, persecution is a complicated concept. This is one reason why it is important to have an experienced attorney who is familiar with asylum cases.
When you write about what happened to you or what you fear will happen to you, be honest. Do not be embarrassed or ashamed of what happened. You will not say anything that will shock Immigration.
Unable to Relocate in Home Country
To qualify for asylum, you also have to show that you could not safely live anywhere else in your home country. This means you should consider two things. First, consider whether there is anywhere else in your country where you could safely live. Second, think about if it would be reasonable to expect you to relocate to another place in your home country. Is there an ongoing war in your country? Are there social and cultural issues? For example, India is a large country with people who speak many different languages and live with very different cultures according to their region. It might not be reasonable to expect you to live in a place where you do not speak the language or understand the culture. You can also consider what personal aspects would make it very hard to relocate, such as: age, gender, health, and social and familial ties.
Reason for Persecution
When you apply for asylum, you not only have to show that someone wants to persecute you, but also that it is because of your: race, religion, nationality, political opinion, or particular social group. The persecution can also be imputed. This means that the person or people who want to hurt you think that you are of that race, religion, nationality, political opinion, or particular social group even if you are not. For example, you may have no political opinion, but if your persecutor thinks that you support his political rival, then they might persecute you based on a characteristic that you don’t really have.
Keep in mind, your persecutor may have several reasons to want to hurt you, but you have to show that at least one central reason was because of these grounds. For example, a Catholic Charities client got into a huge argument with his neighbor for splicing into his electric box and stealing energy. The client’s neighbor threatened to kill him, and he may have feared persecution. But this story alone won’t help him get asylum because the persecution is not due to his: race, religion, nationality, political opinion, or particular social group.
Defining religion and race is straightforward and what you would expect. However, it is more difficult to define political opinion, nationality, and particular social group.
To prove that your persecution is based on political opinion, it can’t be just that your opinion differs from those in power. Your political opinion has to be one that those in power want to stop. Many people disagree with the political opinions of their government, but that does not always mean that their government wants to persecute them.
Nationality can be confusing to understand. Firstly, nationality and citizenship are not the same thing even though they are very similar. Generally speaking, nationality means that you can enjoy the protection of the government, but your participation is limited. For example, you often cannot vote. Whereas, citizenship allows you to fully participate in government by voting and running for office.
From a legal perspective, all citizens are nationals, but not all nationals are citizens. For example, people of American Samoa are nationals of the United States, but they are not citizens. Also, you might be a citizen of more than one country, especially if your parents are from two different countries.
The asylum officer or immigration judge will look to see if you have ties to your second country of citizenship. In other words, to the country where you are not trying to obtain asylum. They want to determine whether or not you can safely live there instead of getting asylum in the United States.
Particular Social Group
Particular social group is harder to understand, especially because no one ever really defined it before making it part of immigration law. Instead, courts have created a definition of it as they reviewed cases. Particular social group involves people who share a characteristic that is so important to who they are that they either cannot or should not have to change it. Typical examples include gender, marital state, and sexual orientation. But it can protect all kinds of different groups, such as Somali tribe members or wealthy Salvadoran land owners.
Until recently, particular social group also included certain immigrant victims of domestic violence. This area of law is a current topic of debate, and may be revised. It will likely go through the federal courts again. If your asylum claim is based on being a victim of domestic violence, it is critical that you work with a really good immigration attorney. The results of your case can have an all important effect on any appeal you might need to file later.
The Government or Private Actor
It is easy to understand why someone would be unwilling to return to a country where their government intended to harm them. However, to qualify for asylum, the persecution does not have to come from the government. Your persecutor could also be someone that your government cannot, or will not, control. For example, Somali tribe members have been persecuting each other for decades. However, right now there is no Somali government to step in and stop the persecution. Another common example of persecution is guerrilla warfare.
Currently, the attorney general is trying to change the idea that the persecutor can be an individual, or private actor. In other words, the law may change so that the only people who qualify for asylum are those who are persecuted specifically by their own government. This is also likely to be debated in the federal courts. Again, this is why it is critical that you work with an experienced immigration attorney. A good immigration attorney will help you organize your case up front so that your story is clearly understood by the asylum officer or immigration judge. You do not want your story to sound inconsistent at any point during your case.
Rules and Exceptions
Apply within One Year
You must apply for asylum within one year of coming to the United States. If you came here on a valid visa and have some other lawful status, for example as a student or tourist, then you must apply for asylum within a reasonable amount of time after that status expires. Generally, six months is considered to be a reasonable timeframe.
However, there are some exceptions to the one year filing deadline. If something changes in your home country or your personal circumstances which would affect your asylum claim, then you may still be able to apply beyond the one year deadline.
- Changes in your home country. For example, you may qualify for a timeline exception if there is a new government elected or a new regime in place; or
- Changes in your circumstances. In order to apply beyond the one year deadline, these circumstances must materially affect your eligibility for asylum. They can include changes in applicable U.S. law and activities you became involved in outside the country of feared persecution that place you at risk. Alternatively, you may qualify for an exception if you were included in your parent’s or spouse’s asylum application but now can’t be included because the relationship no longer exists. For example, if you were included on your parent’s application but now cannot because you have married. Or perhaps on your spouse’s application but now you have divorced.
You still must file your asylum application within a reasonable amount of time after the changed circumstances. The amount of time that may be considered reasonable will be based on whether you can prove that you did not know about the changed circumstances until after they occurred.
Another exception to the one-year deadline is called extraordinary circumstance. Not all of these events affect the details of your application, but most affect your ability to complete it. Examples of extraordinary circumstances include:
- During the one-year period after arrival, you have a serious illness or mental or physical disability, including any effects of persecution or violent harm suffered in the past.
- During the one-year period after arrival, you have a legal disability. For example, if you were an unaccompanied minor or suffered from a mental impairment.
- Your attorney did not provide effective representation. If this is true, you must do several other things, but most importantly, you need to find a new lawyer who is good.
- You have lawful status which is about to end, such as a student visa (F-1 or M-1) or Temporary Protected Status (TPS) from your home country.
- You did file your application within one year, but Immigration rejected it. For example, you may have missed a photograph or forgot a signature. If you correct the mistakes in a reasonable amount of time, you can still meet the one-year filing deadline.
- Your attorney dies.
- An immediate member of your family dies, becomes seriously ill, or incapacitated.
There are a number of reasons why Immigration would deny your application. For example, your asylum claim could be denied if:
- You were involved in persecuting someone else because of their race, religion, nationality, membership in a particular social group, or political opinion.
- You have been convicted of a particularly serious crime without a right to appeal. Particularly serious crime has a complicated definition, however, if you have any criminal history you should find a lawyer before mailing in an asylum application. The last thing you want is to put yourself in deportation proceedings.
- You are a danger to the community of the United States. If you have a history of drug abuse, violent behavior, or drunk driving you may be considered a danger to the community.
- Immigration thinks that you committed a serious nonpolitical crime outside the United States before coming to the United States.
- Immigration thinks that you are a danger to the security of the United States. For example, you would be considered a security threat if you are associated with a group that the United States considers a terrorist organization.
- Before coming to the United States, you lived in another country which allowed you to stay and work.
Asylum Application Process for Adults
Affirmative Versus Defensive
An affirmative asylum claim simply means you start the process by submitting an application to Immigration. You can do this after you are already in the United States, but before you are in removal proceedings. On the other hand, a defensive asylum claim means that you are in removal proceedings and are applying for asylum to stop your deportation from the United States.
The requirements and application process is very similar for both types of asylum. The key difference is who reviews your case. If you apply for affirmative asylum, you will go to the asylum office for an interview after you submit your application. If you apply for defensive asylum, you appear before a judge after you submit your application from jail.
Find a Good Immigration Attorney
There are separate asylum application processes for adults and unaccompanied minors, or children. However, the first step in any asylum case is to go lawyer shopping. You will be much more likely to win your case if you hire an immigration attorney. According to a study* by Syracuse University, you are five times more likely to win your asylum case with the help of an immigration attorney. This is especially important if you are filing an affirmative application. If you apply for asylum and do not qualify, or if the law has changed and you did not know it, you may be at a higher risk for deportation.
Find an experienced immigration attorney who can assess your case and help you make the best decision. Unfortunately, Catholic Charities Milwaukee is often at full capacity and cannot accept new clients. Read our page about How to Hire a Lawyer for more information. It includes a list of attorneys who we know and would recommend based on their expertise.
Your Asylum Clock
Your asylum clock will start the day that Immigration accepts your asylum application for processing. You will receive a notice in the mail when your clock starts. “The clock” is an electronic system that monitors how much time has accrued on your case, or how long your case has been open. It is important because the clock determines when you can apply for a work permit. You must have at least 150 days on your asylum clock before you can submit the forms required to get a work permit. Immigration, however, cannot grant your work permit until you have at least 180 days on your clock.
Stopping the Clock
The clock also monitors if your case has stalled and, if so, it will note why. If your case stalls and it is your fault, your clock may stop. Your clock may stop if you:
- Request to transfer your case to a new asylum office or interview location, including if you move and change your address;
- Request to reschedule an interview for a later date;
- Fail to appear at an interview or biometrics appointment;
- Fail to provide a competent interpreter at an interview;
- Receive a request to provide additional evidence after an interview; and
- Fail to receive and acknowledge an asylum decision in person (if required).
The clock is a common issue for asylum applicants because it often confuses people. If your clock stops when it should not have, getting it started again can be incredibly frustrating. This is another reason why you should hire an experienced immigration attorney.
After you complete all of the forms and submit your asylum application, you will get a receipt notice from Immigration. Your attorney will also get one. Next, you will receive notice for an appointment to have your fingerprints taken and a digital scan of your face. This is called your biometrics appointment.
If you ignore your biometrics notice your asylum application may be considered abandoned and you may be put into deportation proceedings. If you cannot make this appointment, you must inform Immigration in writing and ask for a new one. Learn more in our Biometrics Appointment blog post.
Affirmative Asylum Interview
Getting to Your Appointment
Next, you will receive a notice for an interview with an asylum officer. If you miss this interview or if you cannot make it, you must notify the asylum office as soon as possible to request a new interview. However, you should avoid missing or postponing an interview if you can.
For our clients at Catholic Charities Milwaukee, the interview takes place at the Chicago asylum office. You can find a listing of the asylum offices at USCIS.gov.
When you check in, someone will take a picture of your face as well as a print of your right and left index finger. They will also give you a slip of paper with three numbers on it. These three numbers are the last three digits of your alien registration number. Then you will wait for your asylum officer to call you. The officer will call you by those three numbers; not by your name. If you are not listening for those three numbers, you might not hear the officer call you.
During Your Interview
Before you sit down for the interview, the asylum officer will have you take an oath, or make a promise to be honest. Everything you say during your interview will be under the penalty of perjury. In other words, if they find out you lied, you can be sentenced to jail or deportation.
The officer will also ask for your identification. They will use it to check that all the information on your application is correct and up to date. The officer will make any needed changes, such as listing a new address or a new job. Then the officer will go through your story and ask you questions about your asylum claim. This is simply to review the facts of your case. It is not the officer’s job to be mean to you. They might go through your written statement if you have one.
It is important that the officer really understands what happened to you. Therefore, you need to communicate with them clearly. If you do not understand a question they ask or a word they use, just say so. You do not want to say something that you do not really mean. For example, one of our clients answered yes when the officer asked if she intended to commit polygamy. The client had no intent to commit polygamy; she just did not understand the meaning of polygamy.
Finally, the officer will ask a list of questions that review the reasons the United States will not grant someone asylum. Some of them may seem insulting, but the asylum officer must ask everyone these questions. The asylum officer does not necessarily think these questions personally apply to you, but it is their job to check.
At the end of your interview you will be asked to sign off on any changes that the officer made to your application. You will not receive a decision on your case that day. Later, you might get a decision in the mail or they might ask you to come back to the asylum office to pick it up.
You must bring your own interpreter. Bring someone who you are comfortable with hearing what has happened to you. Make sure they will not be embarrassed to hear and translate all of the details. Your interpreter should be an adult and must speak both English and your native language well enough to tell your story. It is important that the officer clearly understands your story. The interpreter must have enough vocabulary to translate your fear of prosecution into English.
At some point in your interview, your asylum officer will call in a monitor. The monitor’s job is to ensure that the translation is correct. Some of the legal vocabulary is a little unusual and might be hard for your translator.
Defensive Asylum Claim
There are two types of defensive asylum applications. First, if you submit an affirmative asylum application and Immigration denies it, they can send you to deportation. Your claim would then become a defensive asylum claim. The asylum office claims that they do not deny cases, but rather, they refer them to the immigration court. It is important to know, however, that this is almost always in the context of a deportation hearing. In this case, an immigration judge would review your asylum case in an immigration court.
Second, as previously mentioned, if you are already in removal proceedings, you can apply for asylum to stop your deportation. This is a common defense for people who were caught at the border and were immediately put into deportation.
Again, the requirements for asylum are same in both affirmative and defensive applications. Both require that you apply within one year and that you can show a reasonable fear of persecution. The difference is that a defensive application will be decided in immigration court, where an affirmative application will be decided in an asylum office. With the exception of some children who are here without their parents, you will not be interviewed at the asylum office for a defensive claim. Neither affirmative nor defensive asylum applications are easy to do yourself. The court has very strict rules about where to send copies of documents, formatting your evidence, and filing deadlines.
Receiving a Decision
Approved Asylum Application
If your asylum application is approved, you are now an asylee. Sometimes your approval might be pending the final security checks, but at least you will know that the hardest part of the process is over.
Once you have an approved asylum claim, you no longer need a work permit. You can work “incidental to status”. Also, you can get an unrestricted social security card. When you apply for a new job, you must complete an I-9 form. You get to choose which document you use to complete your I-9. Use your unrestricted social security card and driver’s license or state identification to complete it. That is not up to your employer. For more information, read this article from the U.S. Department of Justice.
After one year of being an asylee, you will be eligible to apply for lawful permanent residency, or a green card. You must wait the full year.
Referral to Immigration Court
If your affirmative asylum claim is not approved, you will receive a referral to the immigration court. This usually means that the asylum office will put you into deportation and you must appear before an immigration judge. In this case, now you need to prepare for a defensive asylum hearing (see “Defensive Asylum Claim” section above). This does not necessarily mean you have to panic. It is not uncommon for the asylum office to refer you to the court. The judge may still approve the asylum claim. A good immigration attorney can guide you through this process.
Seek the Help of a Good Lawyer
We Can't Stress This Enough
These pages are intended to help you understand what you are looking for – not to help you complete any of these applications alone. Immigration law is detailed and complicated, and we urge you to rely on a well-trained lawyer for help. Find an immigration attorney who will give you an honest assessment of your case and guide you through the processes.
Frequently Asked Questions
How long your process will take depends on when you applied. The attorney general started a “first in, first out” policy, so that people who applied more recently will be seen before people who have applied a long time ago. Which is opposite of what you might expect. USCIS has organized processing times by application priority:
- First priority: Applications that were scheduled for an interview, but the interview had to be rescheduled at the applicant’s request or the needs of USCIS.
- Second priority: Applications that have been pending 21 days or less.
- Third priority: All other pending affirmative asylum applications will be scheduled for interviews starting with newer filings and working back towards older filings.
To learn more about processing times, read this article from USCIS.gov.
You only need a work permit while your case is pending. Once your asylum claim is approved, you no longer need a permit to work.
Once you are an aslyee, you have to wait one year before you can apply for your green card. Do not apply early. Carefully count out 365 days before you mail in your application.
Yes. Unlike refugees, aslyees must pay the green card fees with USCIS. For the most up to date fee information, look at the listings their website. You will also have to pay for another biometrics appointment during your green card application. However, you can apply for fee waivers for both the green card application fee and the biometrics fee. Ask your immigration attorney to help you through the fee waiver process.
Technically, you will have to be a lawful permanent resident for five years before you can apply for U.S. citizenship. However, as an asylee, when you get your green card it will be backdated one year. This means you only have to wait four years before you can apply for citizenship. Also, you can submit your application 90 days early. Learn more on our Citizenship Application page.
Some immigration applications require you to go to a biometrics appointment. Also known as an ASC (Application Support Center) appointment, the main purpose is for Immigration to take your picture and fingerprints for their records.
The Violence Against Women Act (VAWA) is a gender neutral law that helps both men and women leave abusive relationships. It allows people to petition for themselves, free of charge, when they would otherwise have to depend on an abusive family member to help them with Immigration.
When you have to depend on your lawyer to help you navigate and understand your options, it is especially important to find someone trustworthy and competent.