Seeking Asylum: Understanding The Law And Where To Apply

Asylum seekers are individuals who have fled their home countries in search of safety and protection elsewhere. To be granted asylum, one must meet the international law definition of a refugee. In the US, asylum seekers must be physically present in the country or at a port of entry to request the opportunity to apply for asylum. There are three ways of obtaining asylum in the US: the affirmative process, an Asylum Merits Interview after a positive credible fear determination, and the defensive process.

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

An asylum seeker is someone who has fled their home country in search of safety and protection in another country. They are unable to obtain protection in their home country, so they seek it elsewhere. Asylum seekers may be of any age, gender, socio-economic status, or nationality, though the majority come from regions of the world that are suffering from conflict, disaster, and weak rule of law.

The term "asylee" is used in the US for people who have been granted asylum. Under US immigration law, a person granted asylum is legally allowed to remain in the country without fear of deportation. They are qualified to work and travel abroad and can apply for their spouse or children under the age of 21 to join them. Asylees have the opportunity to become permanent residents and eventually citizens, provided that they meet all other requirements.

To be granted asylum, one must meet the definition of a refugee. The United Nations 1951 Convention and 1967 Protocol define a refugee 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 being persecuted in the future "on account of race, religion, nationality, membership in a particular social group, or political opinion." Congress incorporated this definition into US immigration law in the Refugee Act of 1980.

The asylum merits interview process is initiated when an asylum seeker is placed in expedited removal proceedings and indicates an intention to apply for asylum, expresses a fear of persecution or torture, or expresses a fear of returning to their country. A USCIS asylum officer will conduct a credible fear screening interview to determine whether the asylum seeker has a credible fear of persecution or torture. If the asylum officer finds that the asylum seeker has a credible fear, USCIS may retain and consider the application for asylum or issue a Notice to Appear before an immigration judge for consideration of the asylum claim.

Defensive asylum occurs when an asylum seeker requests asylum as a defense against removal from the US. To be processed as defensive asylum, the asylum seeker must be in removal proceedings in immigration court. Individuals are generally placed into defensive asylum processing in one of two ways: they are referred to an immigration judge by USCIS after being determined to be ineligible for asylum at the end of the affirmative asylum process, or they are placed in removal proceedings because they were apprehended in the US or at a US port of entry without proper legal documents or in violation of their immigration status.

Applicants must prove they have been persecuted or have a well-founded fear of persecution

To be granted asylum, applicants must prove that they have suffered persecution or have a well-founded fear of persecution if returned to their country of origin. This persecution must be based on one of five protected grounds: race, religion, nationality, membership in a particular social group, or political opinion.

The subjective component of a well-founded fear of persecution requires that the applicant demonstrate a genuine fear of returning to their country of origin. Their credible testimony is usually critical to their asylum determination, and factors such as demeanour, candour, and responsiveness are considered.

The objective component requires credible, direct, and specific evidence that supports a reasonable fear of persecution. This evidence may include human rights reports, newspaper articles, proof of relevant memberships or affiliations, and affidavits by experts. A chance of persecution as low as 10% may be sufficient to establish a well-founded fear.

If an applicant can demonstrate past persecution, they are presumed to have a well-founded fear of future persecution. However, this presumption can be rebutted if it can be shown that circumstances in the applicant's country of origin have fundamentally changed, or that the applicant could reasonably relocate within their country to avoid persecution.

Even without demonstrating a well-founded fear of future persecution, an applicant may still be granted asylum if there are compelling reasons, based on the severity of past persecution, for them to be unwilling or unable to return to their country.

Additionally, applicants must prove that their fear of future persecution is based on or motivated by one of the five protected grounds. It is not enough to show that their country of origin is a dangerous place; they must establish a "nexus" between their characteristics and the persecution they fear. The more serious and widespread the threat of persecution to a particular group, the less individualized the threat of persecution the applicant needs to demonstrate.

Asylum seekers must apply within one year of entering the US

Asylum seekers in the US must apply for asylum within one year of their arrival in the country. This is a strict deadline, and those who fail to apply within this timeframe will be barred from receiving asylum, with limited exceptions.

The one-year deadline was the subject of a 2018 class-action lawsuit, which challenged the government's failure to provide asylum seekers with adequate notice of the deadline and a uniform procedure for filing timely applications. The outcome was that the Department of Homeland Security (DHS) is now obligated to notify asylum seekers of the deadline.

Asylum seekers face many obstacles to meeting the one-year deadline. Some are traumatised by their experiences in detention or on their journey to the US and may never know that a deadline exists. Even those who are aware of the deadline often encounter systemic barriers, such as lengthy backlogs, that can make it impossible to file their application in time.

To apply for asylum, an individual must complete a Form I-589, Application for Asylum and for Withholding of Removal. This can be done through the affirmative asylum or defensive asylum processes. Affirmative asylum is for those who are not in removal proceedings, while defensive asylum is for those who are. In both cases, the individual must be physically present in the US or at a port of entry.

There is no fee to apply for asylum in the US.

Asylum seekers must bring their own interpreter to interviews

As of September 2023, asylum seekers in the US who don't speak English must bring their own interpreter to U.S. Citizenship and Immigration Services (USCIS) interviews. This rule changesection reverts to a pre-pandemic requirement, which puts the onus on non-English-speaking migrants to find and pay for an interpreter.

USCIS instructs asylum applicants that:

> "If you need an interpreter and do not bring one, or if your interpreter is not fluent in English and a language you speak, and you do not establish good cause, we may consider this a failure to appear for your interview and we may dismiss your asylum application or refer your asylum application to an immigration judge. We will determine good cause on a case-by-case basis."

Interpreters must be fluent in English and at least 18 years old. They cannot be the applicant's lawyer or a witness testifying on their behalf. The interpreter also cannot be another asylum applicant, a government official from the applicant's country of origin, or a person with a pending asylum application who has not yet been interviewed.

The only exception to the requirement is for sign language interpreters. USCIS will continue to provide sign language interpreters as a disability accommodation for asylum seekers who need it.

Challenges of the New Rule

The new rule poses several challenges for asylum seekers. Firstly, it can be difficult and costly to find a qualified interpreter. Asylum seekers may be forced to rely on family members or friends to interpret for them, which can compromise the accuracy of the interpretation.

Secondly, there are concerns about the quality of interpretation provided. Phoenix attorney Ray Ybarra Maldonado noted that there is no guarantee that an interpreter brought by the asylum seeker will accurately translate the interview, as would be expected from a certified interpreter.

Thirdly, there are potential language barriers. Asylum officers have been known to pressure applicants to proceed with interviews in their second or third language. Some asylum seekers have reported that interpreters spoke the wrong language or dialect, disproportionately affecting speakers of indigenous languages.

Previous Rules

Before the September 2023 rule change, USCIS had implemented a temporary rule during the COVID-19 pandemic, preventing affirmative asylum seekers from bringing their own interpreters to interviews. Instead, the government provided free telephonic interpretation in 47 languages to limit the number of visitors and reduce the spread of COVID-19.

Asylum Application Process

Asylum seekers in the US must prove that they have been persecuted in their home countries or fear future persecution due to their race, religion, nationality, social group, or political beliefs. They can apply for asylum either affirmatively or defensively.

Affirmative Asylum: A person who is not in removal proceedings may affirmatively apply for asylum through USCIS. If the application is denied, the applicant is referred to an immigration court for removal proceedings, where they can renew their asylum request through the defensive process.

Defensive Asylum: A person in removal proceedings may apply for asylum defensively by filing an application with an immigration judge.

While the new rule requiring asylum seekers to bring their own interpreters addresses the challenges of the COVID-19 pandemic, it also introduces new difficulties for asylum seekers. The financial burden of hiring an interpreter and the potential language barriers can create additional stress for individuals already facing persecution and an unfamiliar legal process.

Asylum seekers can apply for work authorization after 150 days

The process of seeking asylum is complex and involves multiple government agencies. Asylum seekers are individuals who have fled their home countries in search of safety and protection elsewhere. They are often escaping violence, persecution, natural disasters, or other humanitarian crises. To be granted asylum, one must meet the international law definition of a "refugee", which includes those who are unable or unwilling to return to their home country due to past persecution or a well-founded fear of future persecution based on race, religion, nationality, membership in a particular social group, or political opinion.

In the United States, asylum seekers can apply for work authorization after 150 days. This means that they can request an initial work permit 150 days after submitting their asylum application (Form I-589). The asylum application process can be done either affirmatively or defensively. An affirmative application is made through the U.S. Citizenship and Immigration Services (USCIS), a division of the Department of Homeland Security (DHS), while a defensive application is made through an immigration court at the Executive Office for Immigration Review (EOIR).

The 150-day waiting period for work authorization is important because it allows asylum seekers to legally work and support themselves and their families while their asylum application is being processed. It also helps address labor shortages and boosts the economy. However, it is important to note that asylum seekers can only receive their work permit after a total of 180 days have passed since filing their asylum claim. This means that while they can apply for work authorization after 150 days, the authorization itself will not be granted until 180 days have passed.

The process of applying for work authorization involves filling out Form I-765, which is available online or by mail. There is no fee for the initial work permit application, and asylum seekers are not required to pay the biometrics fee that applies to other work permit applicants. The government has 30 days to make a decision on the initial work permit applications.

It is worth noting that the waiting period for work authorization has not always been 150 days. Under the Trump administration, the waiting period was increased to 365 days, but this change was later overturned by the Biden administration.

Frequently asked questions