Kara Sears
Asylum seekers in the United States must navigate a complex process involving multiple government agencies and strict eligibility requirements. To be eligible for asylum, individuals must be physically present in the US or at a port of entry, and they must apply within one year of their arrival. They must also demonstrate that they have suffered or will suffer persecution due to their race, religion, nationality, political opinion, or membership in a particular social group. While seeking asylum is legal, the US government has implemented policies such as the Migrant Protection Protocols (MPP) or Remain in Mexico that restrict access to asylum and make it more difficult for asylum seekers to exercise their legal rights.
Characteristics and Values
| Characteristics | Values |
|---|---|
| Asylum seekers must be physically present in the US or at a port of entry (an airport or an official land crossing) to request the opportunity to apply for asylum. | N/A |
| Asylum seekers must file Form I-589, Application for Asylum and for Withholding of Removal, within 1 year of their arrival in the US. | N/A |
| Asylum seekers are not authorized to work unless they meet certain requirements. | N/A |
| Asylum seekers who are placed in expedited removal proceedings and indicate an intention to apply for asylum, express a fear of persecution or torture, or express a fear of returning to their country, will be referred to USCIS for a credible fear screening. | N/A |
| Asylum seekers who have Temporary Protected Status (TPS), lawful immigrant or nonimmigrant status, or who were given parole, until a reasonable period before they filed their asylum application, may be eligible for asylum. | N/A |
| Asylum seekers who have previously included as a dependent in someone else’s pending asylum application may file independently if they have lost their spousal or parent-child relationship to the principal applicant through marriage, divorce, death, or attainment of age 21. | N/A |
| Asylum seekers who have suffered serious illness or mental or physical disability, including any effects of persecution or violent harm suffered in the past, during the 1-year period after their arrival in the US, may be eligible for asylum. | N/A |
| Asylum seekers who are unaccompanied children or suffered from a mental impairment during the 1-year period after their arrival in the US may be eligible for asylum. | N/A |
| Asylum seekers who have committed a serious nonpolitical crime outside the US or pose a danger to the security of the US are barred from asylum. | N/A |
| Asylum seekers who were firmly resettled in another country prior to arriving in the US are barred from asylum. | N/A |
| Asylum seekers who have failed to apply for asylum within one year of entering the US will be barred from receiving asylum. | N/A |
| Asylum seekers who have previously applied for asylum and were denied by an immigration judge or the Board of Immigration Appeals are barred from reapplying unless they can demonstrate changed circumstances that affect their eligibility. | N/A |
| Asylum seekers who are unable to retain an attorney may be five times less likely to be granted asylum. | N/A |
| Asylum seekers who are affirmative applicants must bring an interpreter to their asylum interview if they are not fluent in English or wish to have their interview conducted in a language other than English. | N/A |
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What You'll Learn
- Asylum seekers must be physically present in the US or at a port of entry
- Applicants must submit Form I-589 within a year of arrival in the US
- Asylum seekers can apply affirmatively or defensively
- Applicants must bring an interpreter to their interview if they are not fluent in English
- Applicants are rarely detained by US Immigration and Customs Enforcement (ICE)
Asylum seekers must be physically present in the US or at a port of entry
There are two primary ways in which a person may apply for asylum in the United States: affirmatively and defensively. Affirmative asylum refers to when a person who is not in removal proceedings applies for asylum through US Citizenship and Immigration Services (USCIS), a division of the Department of Homeland Security (DHS). Defensive asylum, on the other hand, is when a person who is in removal proceedings applies for asylum by filing an application with an immigration judge at the Executive Office for Immigration Review (EOIR).
To apply for affirmative asylum, asylum seekers must submit Form I-589, Application for Asylum and for Withholding of Removal, within one year of their arrival in the United States. This form is available on the USCIS website, and there is no fee to apply for asylum. Asylum seekers may include their spouse and children who are physically present in the United States as dependents on their application. It is important to note that affirmative asylum applicants who are not fluent in English must bring an interpreter who is at least 18 years old and fluent in English and a language spoken by the applicant to their asylum interview.
If an asylum seeker's case is not approved by USCIS and they do not have legal immigration status, their case will be referred to an immigration judge for removal proceedings. At this point, the asylum seeker may renew their request for asylum through the defensive process. During defensive asylum proceedings, the immigration judge conducts a de novo hearing, meaning they issue a decision independent of the decision made by USCIS.
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Applicants must submit Form I-589 within a year of arrival in the US
Asylum seekers must be physically present in the US or at a port of entry, such as an airport or official land crossing, to request the opportunity to apply for asylum. Applicants must submit Form I-589, Application for Asylum and for Withholding of Removal, within a year of their arrival in the US. This form is available in 12 languages, including Arabic, Simplified Chinese, Dari, French, Haitian Creole, Pashto, Portuguese, Russian, Somali, Spanish, Turkish, and Vietnamese. However, US Citizenship and Immigration Services (USCIS) only accepts completed forms in English.
The form must be submitted within a year of arrival in the US, and there is no fee to apply for asylum. Applicants can include their spouse and children who are physically present in the US as dependents on their application. To include a child as a dependent, the child must be under 21 years old and unmarried.
There are certain circumstances under which an applicant may be barred from applying for asylum. For example, if they have previously applied for asylum and were denied, committed a serious non-political crime outside the US, or pose a danger to US security. Additionally, since June 4, 2024, an executive order and its September 30 amendment have further curbed the legal right to seek asylum.
It is important to note that applicants who fail to appear for a scheduled asylum interview without good cause or fail to provide a competent interpreter if required may have their Form I-589 referred to an immigration judge and may become ineligible for employment authorization.
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Asylum seekers can apply affirmatively or defensively
Affirmative asylum applicants are rarely detained and have the freedom to live in the United States while their application is pending. To apply for affirmative asylum, individuals must file a Form I-589, Application for Asylum and for Withholding of Removal, within one year of their arrival in the United States. They may include their spouse and children who are physically present in the country as dependents on their application. Affirmative asylum applicants must also bring an interpreter to their asylum interview if they are not fluent in English or wish to have their interview conducted in another language.
Defensive asylum, on the other hand, occurs when an individual requests asylum to prevent removal from the United States. The removal process must already be in effect for the application to switch from affirmative to defensive asylum. Defensive asylum processing typically occurs in one of two ways: when an affirmative asylum applicant is referred to a judge after their ineligibility has been established, or when individuals are placed in removal proceedings, such as when they are caught at a U.S. border.
The application process for asylum in the United States can be complex, and there are backlogs in immigration courts that can cause delays in the system. It is recommended that asylum seekers consult with an experienced immigration attorney to guide them through the process and improve their chances of a successful outcome.
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Applicants must bring an interpreter to their interview if they are not fluent in English
As of September 13, 2023, applicants for affirmative asylum who are not fluent in English must bring their own interpreter to the asylum interview. This requirement also applies to applicants who wish to have their interview conducted in a language other than English.
USCIS will provide sign language interpreters for individuals with disabilities. However, applicants who need an interpreter in another language and fail to bring one may face their application being dismissed or referred to an immigration judge. This will be treated as a missed interview unless the applicant can establish good cause, which will be evaluated on a case-by-case basis.
The interpreter must be at least 18 years old and fluent in both English and the applicant's language. They must present a valid government-issued identity document and complete an interpreter's oath and privacy release statement. The interpreter should translate what the officer and applicant say word-for-word, without adding their own opinion or commentary.
The following individuals cannot serve as your interpreter:
- Your attorney or accredited representative
- Any witness testifying on your behalf
- A representative or employee from your native country's government
- Anyone with a pending asylum application who has not been interviewed
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Applicants are rarely detained by US Immigration and Customs Enforcement (ICE)
Asylum seekers in the US rarely face detention by US Immigration and Customs Enforcement (ICE) agents. However, there have been instances of foreign nationals, tourists, and permanent residents being detained, arrested, and deported under the Trump administration's immigration crackdown. For example, a University of Minnesota graduate student, a Turkish citizen, was detained by ICE agents in an off-campus residence. The student, Doğukan Günaydın, filed a lawsuit seeking immediate release, arguing that his arrest violated his rights and that he had feared he was being kidnapped.
ICE agents have also detained German citizens, including Lucas Sielaff, who was detained for two weeks due to a language barrier issue when re-entering the US from Mexico, and Jessica Brösche, who was traveling with tattoo equipment and was assumed to be intending to work illegally in the US.
It is important to note that all individuals in the United States have rights, regardless of their immigration status. If an individual is detained by ICE, their loved ones can use ICE's online detainee locator to find them. Additionally, individuals have the right to remain silent when questioned or arrested by immigration officers, and they should be aware of their rights to avoid providing information that could be used against them in immigration court.
While asylum seekers are rarely detained by ICE, it is crucial for them to understand their rights and the resources available to them in case of an encounter with ICE or other law enforcement agencies.
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Frequently asked questions
No, you must be physically present in the US to apply for asylum. This can be done at a port of entry, such as an airport or official land crossing.
You need to fill out Form I-589, Application for Asylum and for Withholding of Removal. This form can be filed with USCIS (U.S. Citizenship and Immigration Services) within 1 year of your arrival in the US.
If your application is denied, you will receive a Form I-862, Notice to Appear, and your case will be referred to an immigration judge for a defensive asylum process.
Yes, there are several factors that may bar you from applying for asylum in the US. These include:
- Committing a serious non-political crime outside the US
- Posing a danger to US security
- Failing to apply for asylum within one year of entering the US
- Being firmly resettled in another country prior to arriving in the US
- Previously applying and being denied asylum
- Entering the US through its southwest or adjacent coastal borders
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