Filing an asylum claim has a low chance of success in the United States. Information compiled by the nonprofit data gathering organization Transactional Records Access Clearinghouse found that a record 71.6 percent of U.S. asylum cases were denied in fiscal year 2020—up from 54.6 percent four years earlier.
However, a 2019 report from the National Immigration Forum found that your chances of obtaining asylum are statistically five times higher if you have an attorney. This article will explain the asylum application process and how an attorney can help with your asylum claim.
Table of Contents
- Speak with an Immigration Attorney Today
- What is an Asylum Claim?
- How Do I File an Asylum Claim?
- The Affirmative Asylum Process
- The Defensive Asylum Process
- Proving Fear of Persecution
- In re Kasinga
- Asylum Eligibility Exceptions
- How to File an Asylum Claim
- If You Are Not Eligible for Asylum
- Let Us Help with Your Asylum Claim
Speak with an Immigration Attorney
In fiscal year 2017, 90 percent of asylum applicants who filed without an attorney were denied. By contrast, almost half of those with legal representation filed a successful asylum claim. Do not leave your future in the U.S. to chance. Call 303-688-0944 today to begin your free case assessment. If you would like to speak with us in Spanish, please call 720-359-2442. Si gustarÍa hablar con nosotros en español, por favor llámenos al 720-359-2442.
What is an Asylum Claim?
Asylum is claimed by a person who flees their home country, enters or requests entry into the United States, and applies for protection from the U.S. so they do not have to return to their home country.
In order to be eligible for asylum, you must meet the definition of a refugee in the Immigration and Nationality Act (INA).
The INA defines a refugee as:
“any person who is outside the country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S. Code § 1101
The term “refugee” does not apply to you if you ordered, incited, assisted, or otherwise participated in the persecution of any person on account of their race, religion, nationality, membership in a particular social group, or political opinion.
How Do I File an Asylum Claim?
You may apply for asylum using USCIS Form I-589 if you are already in the U.S., preferably on a valid visa. This process is known as affirmative asylum.
If you are outside the U.S. and do not have a valid visa, you can apply for asylum at a U.S. port of entry, such as a border crossing. This process is known as defensive asylum. This is much more complex.
The Affirmative Asylum Process
If you are not currently in removal proceedings, you will apply for asylum using the affirmative asylum process. To apply for affirmative asylum, you must first have been physically present in the U.S. for less than one year from the date of your last arrival. It does not matter how you entered the U.S.
If you are not physically present in the U.S., you have to show that you qualify for an exception to this requirement.
Secondly, you must demonstrate that you were persecuted or that you are afraid you might be persecuted due to your:
- political opinion
- membership in a particular social group.
Both affirmative and defensive asylum claims require you to show an immigration judge that you have a credible fear of persecution in your home country. We will further examine credible fear of persecution below.
Can I Include Family Members Included on My Asylum Application?
Yes. You can include your spouse on your affirmative asylum application. You may also include any unmarried children as long as they are younger than 21 years old.
These family members may be added to your application at any time before a final decision is made on your case.
The Defensive Asylum Process
You can only apply for asylum through the defensive asylum process if you are currently in removal proceedings in U.S. immigration court.
There are generally two ways you can end up in defensive asylum processing:
1: You are referred to an immigration judge by the U.S. Citizenship and Immigration Services after you have been found ineligible for asylum at the end of the affirmative asylum process
— or —
2. You are placed into removal proceedings because you:
- were caught without proper legal documentation, or in violation of your immigration status, in the U.S. or at a U.S. port of entry
- were caught by U.S. Customs and Border Protection trying to enter the U.S. without proper documentation, were placed in the expedited removal process, and were found to have a credible fear of persecution or torture in your home country.
Proving Fear of Persecution
Persecution is not specifically defined in the Immigration and Nationality Act. However, courts have held that “persecution can consist of the infliction of harm or suffering by a government, or persons a government is unwilling or unable to control, to overcome a characteristic of the victim.” In re Kasinga, 21 I. & N. Dec. 357, 365 (B.I.A. June 13, 1996)
Who Persecuted You?
The persecution must come from either your country’s government or other authorities that the government cannot control.
Examples of groups that a country may be unable to rein in include:
- warring tribes or ethnic groups
- organized vigilantes
Why Were You Persecuted?
Your persecution must have been based on at least one of these five grounds:
- political opinion
- membership in a particular social group.
Proving Why You Were Persecuted
You must show a connection, or nexus, between your persecution and one of the five grounds mentioned above. This means proving that your race, religion, nationality, political opinion, or membership in a particular social group was “at least one central reason” for your persecution:
“A ‘central reason’ is a reason of primary importance to the persecutors, one that is essential to their decision to act.” Parussimova v. Mulcasey, 555 F.3d 734, 741 (9th Cir. 2008). “In other words, a motive is a ‘central reason’ if the persecutor would not have harmed the applicant if such motive did not exist.”
In the matter of A[Redacted] C[Redacted] A[Redacted]-A[Redacted], BIA (May 20, 2019)
Let’s look at how one immigrant was granted asylum after successfully proving her fear of persecution.
In re Kasinga
In the ‘90s, 19-year-old Fauziya Kasinga fled her native Togo in West Africa to escape her tribe’s practice of female genital mutilation (FGM). She first traveled to Germany where she obtained a fake passport.
Upon arriving in the U.S., Kasinga immediately informed immigration officials that her documents were false. She then requested asylum.
During her immigration hearing, Kasinga testified that the Togolese police and government were aware of FGM and would not protect her from the procedure. She further testified that her aunt had reported her to the Togolese police.
Kasinga testified that if she were not granted asylum in the U.S., the police would take her back to her husband who would then force her to undergo FGM.
She testified at several points that she would have no one to protect her from FGM in Togo.
Kasinga is Denied Asylum
An immigration judge denied Kasinga’s asylum application and ordered her deportation from the U.S.
Among other factors, the judge claimed Kasinga had not established that she would be unable to avoid FGM by moving to another part of Togo.
Kasinga appealed the judge’s decision to the Board of Immigration Appeals (BIA).
BIA Sides with Kasinga
On appeal, the BIA found that Kasinga presented credible testimony that her husband is a well-known friend of the police in Togo. Because Togo is a small country and the police would not protect her, she would find no refuge anywhere in her homeland.
Ultimately, the BIA disagreed with the immigration judge and granted Kasinga’s asylum claim:
“The applicant has a well-founded fear of persecution in the form of FGM if returned to Togo. The persecution she fears is on account of her membership in a particular social group consisting of young women of the Tchamba-Kunsuntu Tribe who have not had FGM, as practiced by that tribe, and who oppose the practice. Her fear of persecution is country-wide. We exercise our discretion in her favor, and we grant her asylum.”
What Makes You Ineligible for Asylum
Here are some instances when you may be ineligible for asylum as outlined in 8 U.S. Code § 1158.
Safe Third Country Agreement
A safe third-country agreement means the U.S. and another country recognize that each country can effectively protect refugees seeking asylum from persecution. You would have full access to a fair procedure for determining your asylum claim in the safe third country, just as you would in the U.S.
With an agreement in place, asylum seekers who request protection in the U.S. after first passing through the “safe” third country may be returned there to seek refuge.
You can be declared ineligible for asylum if more than one year has passed since you arrived in the U.S.
Previous Asylum Applications
If you have previously been denied asylum, you are not eligible to reapply. There are some exceptions.
Exceptions for Changed Circumstances
Even if you fail to file a timely asylum claim, the U.S. may still consider your application if you can prove:
- a fundamental change in your circumstances that significantly affects your asylum eligibility, and
- that extraordinary circumstances caused the delay in filing.
Here are some examples of changed circumstances that may qualify for an exception to the one-year filing rule:
- changed conditions in your home country, or the country where you last lived
- applicable changes in U.S. law
- recent changes in your personal circumstances (i.e., political activism or converting to a new religion)
- you were a derivative beneficiary in a previous immigration application and the qualifying relationship has ended (i.e., your spousal or parent-child relationship ends)
How to File an Asylum Claim
How you apply for asylum status depends on whether you are at a U.S. border or entry point (such as an airport) or already in the country.
Applying at U.S. Borders and Entry Points
If you have a valid visa or entry document, it’s best to use that to enter at a U.S. border or airport. However, if U.S. officials refuse to let you in you can explain that you fear returning to your home country and ask to apply for asylum.
At this point, you might be put into a detention facility while you wait for your “credible fear” hearing with a USCIS asylum officer.
The asylum officer does not have the power to approve your asylum request at that point. He or she can only decide whether you truly seem afraid of persecution and, therefore, deserve to have an immigration judge hear your case.
If you convince the asylum officer that you have a credible fear of persecution, you’ll get a chance to make your case for asylum in front of an immigration judge.
If the asylum officer doesn’t find your fears credible, you will be deported unless you ask an immigration judge to take another look at your case. The judge must then make a decision within seven days.
If the judge disagrees with the asylum officer, you’ll get the chance to prove your case during an immigration hearing.
However, if the judge agrees with the asylum officer’s assessment, you will be deported. You cannot appeal the judge’s decision.
Applying if You are Already in the U.S.
If you are already in the U.S., your first step to apply for asylum should be to fill out USCIS Form I-589 and mail it to USCIS, along with other documents you’ll be asked to provide.
One of the most important documents is your affidavit or personal statement. This document should contain details that you’re prepared to verbally explain.
It’s always a good idea to include documents that back up your claim. Documents that personally name you are ideal, such as:
- a newspaper article about your arrest
- a group membership card (if your affiliation with that group led to your persecution)
- medical records showing injuries you suffered from being beaten or tortured
Even without this kind of documentation, a well-prepared case should show that conditions in the country you fled correspond with what you’ve described in your affidavit. For example, maybe you’re claiming that the government regularly threatens dissidents. You should supply international press articles or reports by human rights organizations that confirm this.
The Asylum Interview
You’ll be scheduled to attend an interview at a USCIS asylum office. Unfortunately, you could be waiting several years for this interview, depending on the region.
If you don’t speak English, you’ll need to bring your own interpreter to the interview.
What Happens if You Are Denied Asylum
If your asylum request is denied, you will be referred to immigration court. There, you can again present your case to an immigration judge—this time with more documents and evidence.
If the judge denies your asylum claim, you can appeal. You will appeal first to the Board of Immigration Appeals (BIA), then to a federal appeals court, and possibly the U.S. Supreme Court if it decides it wants to hear your case.
If You are Not Eligible for Asylum
Apply for Withholding of Removal
You may have other options to remain in the U.S. if you are not eligible for asylum, including “withholding of removal.”
Withholding of removal stops the U.S. government from sending you to your home country during the time that your life or freedom may be threatened.
You can request withholding of removal even if more than one year has passed since you last arrived in the U.S.
However, only the Department of Justice’s immigration court can grant a withholding of removal. Additionally, it does not extend to your family members.
Let Us Help With Your Asylum Claim
Any process involving the U.S. government comes with red tape. Filing an asylum claim is no exception. The immigration attorneys at Robinson & Henry will gather evidence to support your request, ensure you turn in an error-free application, and stand beside you in immigration court. Call 303-688-0944 today to begin your free case assessment, or call 720-359-2442 for our Spanish-speaking line, o lláme al 720-359-2442 para hablar con alguien en español.