Asylum
Eligibility, Bars to Apply, & Step-by-Step Process for Affirmative Asylum in the United States
***Asylum is a particularly complex immigration application, and the majority of applications in the United States are denied. So, while this page provides a summary, it is very important that you speak with an immigration attorney about your specific situation to determine eligibility and plan a course of action that is most likely to be successful.
The first step in applying to USCIS for Affirmative Asylum to in the United States is to determine if you are eligible.
Eligibility
In general, there are 4 main requirements to be eligible for Asylum. You must have experienced persecution or have a well-founded fear of future persecution based on a protected ground (which is the reason you are experiencing persecution) and the government participates in this persecution or is unable or unwilling to stop it. Let's break it down:
Past Persecution -OR- Well-Founded Fear of Future Persecution
Past Persecution
Persecution is defined as "a threat to the life or freedom of, or the inclination of suffering or harm upon, those who differ in a way regarded as offensive" (Acosta)
General conditions of violence in the country, such as war, does not qualify as persecution.
Well Founded Fear of Future Persecution
If you have been subject to past persecution, it is presumed that you have a well-founded fear of future persecution on account of the same ground. (8 CFR s. 1208.13(b)(1).) This is, unless the government can establish that you can reasonably relocate within your country of origin, or there has been a fundamental change in circumstances.
There are 2 parts to a well founded fear of persecution:
Subjectively Genuine Fear
This requirement is generally satisfied through credible testimony
Objectively Reasonable Fear
To determine if there is objectively reasonable fear- the situation is considered through the eyes of a similarly situated person. This can also be satisfied by showing that there is a reasonable possibility that you will be singled out for persecution OR there is a widespread pattern or practice of persecuting similarly situated people.
This is also looked at through the eyes of the applicant, taking gender and age into account.
2. The Persecution must be Based on a Protected Ground
To be eligible, you must have faced persecution due to one of the 5 protected grounds:
Race
Religion
Nationality
Political Opinion
Particular Social Group
What is a Particular Social Group? It must have these 3 characterizations:
Immutable Characteristic- a fundamental characteristic that cannot be changed or should not be expected to be changed (Acosta)
Particularity- the group must have discrete and definable boundaries. It cannot be amorphous, overbroad, diffuse, or subjective (Matter of M-E-V-G-)
Social distinction- the group in question must be perceived as a group within the society. Basically, if you say the name of the group, would people know what that means? (Matter of M-E-V-G-)
3. Nexus
This means that the protected ground was/will be a central reason for the persecution
4. Government Action or Lack There Of
In order to establish asylum, you must show that the persecutor was a government actor. If the persecutor is not a government actor, then you must show that the government was unwilling or unable to protect you.
There are also some bars to applying for asylum, which means that you are not eligible if you:
Did not apply within 1 year of your last arrival into the US (there's an exception if you are in the US with a legal status, or had legal status for part of the time you were here and your time undocumented has been less than a year);
Had a pervios asylum application denied by an immigration judge or the Board of Immigration Appeals; or
Can be removed to a safe third country under a 2-party or multi-party agreement between the United States and other countries.
There are exceptions to these bars for “changed circumstances” or “extraordinary circumstances.”
Both are defined in 8 CFR 208.4. For more information on the bars and the exceptions, see USCIS' Asylum Bars page.
How to Apply
File Form I-589
Complete form I-589 and submit it along with the appropriate supporting documents. You can apply online and there is no filing fee. See this Timeline for a visual idea of each step.
2. Biometrics
USCIS will send you a notice letting you know when your Biometrics appointment will be. This notice will usually come in about 3-5 weeks after you submit your application.
3. Submit Application for Work Authorization (150 days after you submit the I-589)
File form I-765 online. There is no fee if you are filing based on a pending asylum application. 180 days after you submit the I-589, then you will be eligible to receive the EAD.
4. Interview
The next step is the Interview. USCIS will send you a notice of the time and place of your interview. It might take quite a long time before you get this notice.
5. Decision
About 2 weeks after the interview, USCIS will issue either an approval, or they will deny the application and refer your case to immigration court, unless you have another legal status that you are currently in the US on.
If you think you would like to apply for Asylum, or if you have any questions and would like to speak to an attorney, please contact Hope Immigration- we would love to help you.