Understanding Asylum Law For Illegal Migrants In The Us

what is law about illegals applying for aslyum in us

The right to apply for asylum is enshrined in US and international law. Asylum seekers must be physically present within the US or at an official port of entry. There are three pathways to obtaining asylum: the affirmative process, the defensive process, and the Asylum Processing Rule. To be granted asylum, an individual must meet the international law definition of a refugee and provide evidence of past persecution or a well-founded fear of future persecution based on one of five protected grounds. While seeking asylum is legal, there are restrictions in place that limit the ability of certain individuals to apply for asylum, such as the safe third country agreement.

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Asylum seekers must be physically present in the US or at a port of entry

In affirmative asylum, a person who is not in removal proceedings may apply through US Citizenship and Immigration Services (USCIS). If the asylum application is not approved, the applicant is referred to an immigration court for removal proceedings, where they may renew their asylum request through the defensive process.

Defensive asylum involves applying for asylum as a defence against removal from the US. This is done by filing the application with an immigration judge at the Executive Office for Immigration Review (EOIR).

In addition to these two processes, a third pathway was created in 2022 with the Asylum Processing Rule. This applies to some individuals entering the US who are first put in expedited removal and given a credible fear interview, which initiates a defensive asylum claim. If they pass this interview, they are referred to an asylum officer for a non-adversarial Asylum Merits Interview. If asylum is not granted, the case is then referred to an immigration judge.

All three processes require that an individual be physically present in the US or at a port of entry.

To be granted asylum, an individual must meet the definition of a refugee. This is defined by the 1951 Convention and 1967 Protocol of the United Nations as a person who is unable or unwilling to return to their home country, and cannot obtain protection in that country, due to past persecution or a well-founded fear of future persecution on account of "race, religion, nationality, membership in a particular social group, or political opinion".

An asylee is protected from being returned to their home country and can apply for a Social Security card, request permission to travel overseas, and petition to bring family members to the US. They are also authorized to work and may be eligible for certain government programs. After one year, they may apply for lawful permanent resident status (a green card).

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Applicants must apply within 1 year of arrival in the US

In the United States, asylum seekers are generally required to apply for asylum within one year of their arrival in the country. This is known as the one-year filing deadline or the one-year asylum bar. Those who fail to meet this deadline will be barred from receiving asylum, with certain exceptions.

The one-year deadline starts from the date of the asylum seeker's last arrival in the United States. It is important to note that this deadline applies regardless of the asylum seeker's immigration status or how they entered the country. However, there are some exceptions to the one-year rule. For example, unaccompanied minor children are exempt from this deadline. Additionally, individuals may qualify for an exception if they can demonstrate changed circumstances that materially affect their eligibility for asylum or extraordinary circumstances related to the delay in filing. Changed circumstances may include changes in the conditions of their country of nationality or changes in their personal circumstances that affect their eligibility. Extraordinary circumstances may include serious illness, mental or physical disability, legal disability, or ineffective assistance of counsel.

To apply for asylum, individuals must complete Form I-589, Application for Asylum and for Withholding of Removal. This form can be submitted through the affirmative asylum process or the defensive asylum process. The affirmative process is for individuals who are not currently in removal proceedings, while the defensive process is for those who are in removal proceedings. Regardless of the process, it is crucial to meet the one-year deadline or qualify for an exception to be considered for asylum in the United States.

The one-year filing deadline for asylum is a critical aspect of the asylum process in the United States. It is important for asylum seekers to be aware of this deadline and take the necessary steps to meet it or qualify for an exception. By doing so, they can increase their chances of being considered for asylum and obtaining the protection they need.

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Asylum seekers must demonstrate persecution or a well-founded fear of persecution

Asylum seekers must be physically present in the United States or at a port of entry to apply for asylum. They must also demonstrate that they are unable or unwilling to return to their home country due to past persecution or a well-founded fear of future persecution based on one of five "protected grounds": race, religion, nationality, political opinion, or membership in a particular social group.

The "well-founded fear of persecution" means that an asylum seeker must show a significant possibility that they will be able to establish eligibility for asylum or withholding of removal under the Immigration and Nationality Act or withholding of removal or deferral of removal under the Convention Against Torture. This determination is made by a USCIS asylum officer during a credible fear interview, which is part of the expedited removal process. If the asylum officer determines that the individual has met the standard, they are then referred to proceedings where they can submit an application for asylum or other similar protections.

If an asylum seeker is found to have a credible fear of persecution, they will be given an Asylum Merits Interview, which mirrors the affirmative asylum claim process. An asylum officer can then either grant or deny asylum. If asylum is denied, the case is referred to an immigration judge. Additionally, a person who is denied asylum by an asylum officer is also assessed for eligibility for withholding of removal and protection under the Convention Against Torture, which is another feature of the defensive asylum process.

To be granted asylum, an individual must provide evidence demonstrating either that they have suffered persecution on account of a protected ground in the past and/or that they have a well-founded fear of future persecution in their home country. An individual's testimony is usually critical to their asylum determination.

It is important to note that asylum is a "`discretionary' status, meaning that some individuals who meet the definition of a refugee may still be denied asylum. For those individuals, a backstop form of protection known as "withholding of removal" may be available to protect them from harm.

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Applicants must complete Form I-589, Application for Asylum and Withholding of Removal

To apply for asylum in the United States, individuals must complete Form I-589, Application for Asylum and Withholding of Removal. This form is used by individuals who are in the United States and seeking protection as refugees. It is the official application form for requesting asylum and for requesting withholding of removal.

To be eligible for asylum, an individual must be physically present in the United States and not be a U.S. citizen. They must also be unable or unwilling to return to their home country due to past persecution or a well-founded fear of future persecution based on their race, religion, nationality, membership in a particular social group, or political opinion.

Withholding of removal is another form of protection with a higher burden of proof compared to asylum. To be eligible for withholding of removal, an individual must establish that it is more likely than not that they would face persecution or torture in their home country. This protection prevents the individual from being deported to a country where their life or freedom would be threatened.

Individuals seeking asylum or withholding of removal must file Form I-589 within one year of arriving in the United States, or they will not be considered eligible for asylum. There is no cost to file Form I-589, and USCIS may also provide biometrics services at no cost to asylum applicants.

The process for applying for asylum typically involves the following steps:

  • Be physically present in the United States.
  • File Form I-589 within one year of arrival and provide all necessary information and supporting documentation.
  • Attend a biometrics appointment for fingerprinting, photographs, and background checks.
  • Attend an asylum interview with a USCIS asylum officer to evaluate the credibility of the claim and gather additional information.
  • Receive a decision from USCIS, which may include approval, denial, or referral to an immigration court for further review.
  • If the case is referred to an immigration court, present your case before an immigration judge, who will decide on the eligibility for asylum or other forms of relief from removal.

It is important to note that the asylum process can be complex, and these steps may vary depending on individual circumstances. Additionally, asylum seekers have the right to seek legal representation during the immigration court proceedings.

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Asylum seekers may apply regardless of their immigration status

Asylum seekers in the US may apply for asylum regardless of their immigration status. This means that even if an individual is in the US illegally, they can still apply for asylum. However, they must not currently be in removal proceedings and must file their asylum application within a year of arriving in the country.

There are three pathways to obtaining asylum in the US: the affirmative process, the defensive process, and the expedited process.

The affirmative process is for immigrants with temporary legal status, such as short-term visa holders. They can file an asylum application with U.S. Citizenship and Immigration Services (USCIS), a division of the Department of Homeland Security (DHS). If the application is denied, they are referred for deportation but can turn to the defensive asylum process.

The defensive process is for migrants who are in removal proceedings. They can request asylum as a defense against deportation if their asylum application is denied or if they are apprehended for lacking valid documentation. An immigration judge within the Executive Office for Immigration Review (EOIR) hears each asylum seeker's case.

The expedited process was introduced in 2022. Migrants who are facing expedited removal and who are found to have credible fears of persecution when interviewed after being caught crossing the border illegally are put through this process. They are referred to an asylum officer for a non-adversarial Asylum Merits Interview between 21-45 days after the credible fear determination. The asylum officer can then either grant or deny asylum. If asylum is denied, the case is referred to an immigration judge.

All three processes require that an individual be physically present in the United States or at a port of entry before they can be initiated.

Frequently asked questions

The law states that individuals who enter the US through its southwest land border or adjacent coastal borders are presumed to be ineligible for asylum, unless they can demonstrate an exception or rebut the presumption. However, asylum seekers are not required to have a legal immigration status to apply for asylum.

Asylum seekers must be physically present in the US or at a port of entry. They must also apply for asylum within 1 year of their arrival in the US, although there are exceptions for extraordinary circumstances.

There are three pathways to obtaining asylum in the US: the affirmative process, the defensive process, and the Asylum Processing Rule. The affirmative process involves applying for asylum through the US Citizenship and Immigration Services (USCIS). If the application is denied, the applicant can renew their request through the defensive process, which involves appearing before an immigration judge. The Asylum Processing Rule is an expedited process for individuals who are first put into expedited removal and express fear of persecution or torture.

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