Asylum

 

Protecting Foreign Nationals

At Compass Immigration P.A., we recognize that many people come to the United States seeking shelter from various dangers in their home country.  Applying for asylum or can be very difficult when arriving into a new country.

What is Asylum or Refugee Status

Refugee status or asylum may be granted to people who have been persecuted or fear they will be persecuted on account of race, religion, nationality, and/or membership in a particular social group or political opinion.

In recent years, the United States Government has recognized that many victims of domestic violence and are also entitled to asylum.

Did you escape your home country?  Are you afraid to return to your home country because you will be in danger?  Are you afraid of your government, a group, or even a particular individual?  If so, Compass Immigration P.A. may be able to help you.  There are several ways an individual can obtain lawful status due to the danger of returning to their home country.  Depending on your circumstances, you may be eligible to apply for one of the following:

Where to File

Asylee

If you wish to apply for asylum, you can do so from within the United States or when you arrive at a border crossing.

Refugee

Refugees are generally people outside of their country who are unable or unwilling to return home, and are not yet in the United States.  Refugee status is typically granted to people who are of special humanitarian concern to the United States.

Affirmative Asylum Application

An “affirmative application” allows you to request Asylum directly from the United States Citizenship and Immigration Services (USCIS).  After filing for Asylum directly with USCIS, you will be scheduled for an interview.

Note that there is a One Year Deadline to apply.  This means that generally, you must apply within one year of arriving in the United States.

However, there are certain exceptions to the One Year Deadline.  There may be exceptions to the “one year deadline” in special circumstances. For example:  if the conditions in your home country have materially changed since you entered the United States, or if your personal circumstances have changed and you would be a danger to return to your home country.

In addition, you may be able to successfully apply for asylum past the one year deadline if you can prove that extraordinary circumstances prevented you from submitting the application within one year of your arrival.  In these cases, the application must be submitted within a “reasonable time” considering the circumstances.

Defensive Asylum Application

The second way to apply for asylum is for people who are in removal or deportation proceedings (Immigration Court).  This method is called a “defensive application”.  In this situation, you must file your application for Asylum with both the Immigration Court and USCIS. Eventually, you will be scheduled with an individual hearing before a Judge in Immigration Court.  This process is similar to a trial.

In some cases, an affirmative asylum application may become a defensive application.  This happens when an individual who is not in removal proceedings submits their initial application for asylum to the local USCIS office and undergoes an interview that results in a denied application.  If you are undocumented when USCIS denies your case, they will refer you to the immigration court and you may be placed in removal proceedings.  At this point, you can re-submit your asylum application in Immigration Court.

Can an Asylee or a Refugee become a Lawful Permanent Resident?

Yes! If you are granted asylum or refugee status, you can apply for Permanent Residence (a green card) one year after you become an asylee or one year after you enter the United States as a refugee.

However, there are yearly limits as to how many people can obtain legal permanent residence (a green card) each year.  These limits can cause delays when requesting your green card.

Working as an Asylee or Refugee

Asylee

Yes, you will eventually be able to work.  However, as an Asylee applicant, you cannot apply for permission to work (employment authorization) at the same time you apply for asylum.  You may apply for employment authorization once:

  • 150 days have passed since you filed your complete asylum application, excluding any delays caused by you (such as a request to reschedule your interview) AND
  • No decision has been made on your application

Refugee

If you are granted asylum you may work immediately.  Some asylees choose to obtain Employment Authorization Documents (EADs) for convenience or identification purposes, but an EAD is not necessary to work if you are an asylee.

As a Refugee, you may work immediately upon your arrival in the United States.  When you are admitted to the United States you will receive a Form I-94 containing a refugee admission stamp.  While you are waiting for your Employment Authorization Document, you can present your Form I-94, Arrival-Departure Record, to your employer as proof of your permission to work in the United States.

Family Members

Asylee

If you are granted asylum you may petition to bring your spouse and children to the United States.  To include your child on your application, the child must be under 21 and unmarried.  You may include a same-sex spouse in your application provided that you and your spouse are legally married.

You must file the petition for your family members within two years of being granted asylum unless there are humanitarian reasons to excuse this deadline.

Refugee

Your case may include your spouse, child (unmarried and under 21 years of age), and in some limited circumstances, other family members like your parents.  You may include a same-sex spouse in your application provided that you and your spouse are legally married.

If you are already in the  United States as a Refugee you can request to bring your spouse and unmarried children under 21.  You must file within two years of your arrival to the United States unless there are humanitarian reasons to excuse this deadline.

Withholding of Removal

Withholding of Removal, or “withholding,” is an immigration benefit that prohibits the United States government from returning an immigrant to their home country if their life or freedom would be threatened due to their religion, race, nationality, political opinion, or membership in a particular social group.  The benefits granted to a withholding applicant are lesser than those granted to an asylee or refugee because withholding applicants are not eligible to become legal permanent residents and their status can more easily be revoked.

However, it is an important option for individuals who are prohibited from receiving asylum status for reasons such as conviction of an aggravated felony, missing the one-year filing deadline for asylum applications, or not being eligible for an enumerated exceptions.

Unlike asylum, withholding of removal can only be granted by an immigration judge, so it is only available as a defensive application in immigration court.  Withholding also differs from asylum in that the legal standard is more difficult to satisfy.  While asylum requires the applicant to prove that they have a “well-founded fear of persecution”, withholding of removal requires the individual to demonstrate that it would be “more likely than not” that they will face persecution if returned to their home country.

Once granted, withholding can only be terminated if an individual’s case is reopened and government attorneys can establish to an immigration judge that they are no longer likely to be tortured if returned to the home country.

Protection Under the Convention Against Torture (UNCAT)

Protection under the Convention Against Torture (CAT) is a benefit that arises from the United Nations that both prohibits governments from torturing their citizens and prohibits governments from deporting individuals to countries where the deportee would more likely than not be subject to torture.

CAT is used as a last resort for individuals who would likely be subject to torture, but who are ineligible for withholding of removal because they have been involved in the persecution of others in the past or have other serious criminal convictions that bar them from asylum or withholding.

CAT is a more tenuous immigration status because it is easier to terminate than withholding or asylum.  Also, unlike applicants for withholding, individuals may be detained by Department of Homeland Security even after being granted CAT if they are deemed to be a threat to the community.

CAT Eligibility

To be eligible for Deferral of Removal under the Convention Against Torture, an individual must demonstrate to the immigration judge that it is “more likely than not” that they will be tortured if they return to their home country.  They also must prove that this torture will be carried out “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”.