If you are afraid to return to your home country because you have been persecuted—or believe you will be persecuted—you may be eligible to apply for asylum in the United States. Asylum is a form of protection that can allow a person to remain legally in the United States because returning to their home country would place them at risk of serious harm.
Asylum cases can be complicated. The government does not grant asylum simply because someone is afraid to return home or because conditions in their country are dangerous. An applicant generally must show that the persecution or fear of persecution is connected to a protected ground under U.S. immigration law.
At Jos Immigration Law, we help individuals and families understand their options and prepare asylum cases based on their individual circumstances. Every asylum case is different, and the facts, evidence, immigration history, and circumstances of the applicant can all matter.
Read: Asylum Examples: What May Qualify—and What May Not
What Is Asylum?
Asylum is a form of protection available to certain individuals who are unable or unwilling to return to their home country because of past persecution or a well-founded fear of future persecution.
Under U.S. immigration law, persecution must generally be connected to one or more of the following protected grounds:
- Race
- Religion
- Nationality
- Political opinion
- Membership in a particular social group
The harm involved must generally rise to the level of persecution. Depending on the circumstances, persecution can include serious physical violence, kidnapping, threats, imprisonment, sexual violence, or other serious harm. The specific facts of the case are extremely important.
The US government also considers whether the person responsible for the persecution is the government itself or whether the government is unable or unwilling to protect the applicant from private individuals or groups.
Who Can Apply for Asylum?
Generally, a person may apply for asylum if they are physically present in the United States or arrive in the United States and meet the legal requirements for asylum.
One of the most important requirements is the one-year filing deadline. In general, an asylum application must be filed within one year of the applicant's arrival in the United States. There are limited exceptions to this rule based on changed circumstances or extraordinary circumstances.
Because the one-year deadline can be critical, someone who believes they may qualify for asylum should speak with an immigration attorney as soon as possible rather than waiting until the deadline approaches.
What Is the Difference Between Affirmative and Defensive Asylum?
There are two primary ways an asylum case can proceed: affirmative asylum and defensive asylum.
Affirmative Asylum
An affirmative asylum application is generally filed with U.S. Citizenship and Immigration Services (USCIS) when the applicant is not currently in removal proceedings.
The applicant files Form I-589, Application for Asylum and for Withholding of Removal, and may later be scheduled for an interview with an asylum officer.
If USCIS does not approve the application and the applicant does not otherwise have lawful status, the case may be referred to Immigration Court. The applicant can then present the asylum claim before an Immigration Judge.
Defensive Asylum
A defensive asylum application is generally filed with the Immigration Court when a person is already in removal proceedings.
In these cases, asylum becomes part of the person's defense against removal from the United States. The applicant must present the asylum claim and supporting evidence to the Immigration Judge.
The Immigration Judge may consider asylum, withholding of removal, and protection under the Convention Against Torture when applicable.
For someone facing deportation or removal, an asylum case can therefore involve much more than simply completing an application. The case may involve court hearings, evidence, witness testimony, legal briefing, and examination of the applicant's immigration and criminal history.
What Evidence Is Needed for an Asylum Case?
An asylum application should be supported by evidence whenever reasonably available.
Depending on the case, evidence may include:
- Personal statements and declarations
- Police reports
- Medical records
- Photographs
- Threatening messages or communications
- News articles and country-condition reports
- Membership records
- Political or religious records
- Court documents
- Evidence of previous arrests or detention
- Statements from family members, friends, or other witnesses
- Expert opinions
- Other documentation showing past persecution or the risk of future persecution
Not every asylum applicant will have extensive documentation. People fleeing persecution may not have been able to collect records before leaving their country.
This does not automatically mean that an asylum case cannot be presented. The applicant's testimony and overall credibility can be important, and an attorney can help determine what evidence may be available and how it should be presented.
Can You Apply for Asylum Without Documentation?
Possibly but unlikely.
Many people leave their home countries suddenly and cannot bring documents with them. Others may be afraid to contact authorities or family members to obtain records.
The absence of documentation does not automatically mean an asylum applicant is ineligible. However, the applicant still has the burden of establishing eligibility for asylum, and inconsistencies or unexplained gaps in the evidence can create problems.
For this reason, it is important for an applicant to provide a complete and truthful account of what happened and to carefully review the application before it is submitted.
What Happens at an Asylum Interview?
In an affirmative asylum case, the applicant may be interviewed by an asylum officer.
The interview generally focuses on the applicant's background, immigration history, experiences in their home country, reasons for fearing return, and the facts supporting the asylum claim.
The applicant may be asked detailed questions about events that occurred years earlier. Dates, locations, people involved, and the sequence of events may all become important.
Applicants should never guess or invent information simply because they do not remember an exact date or detail. If a person does not remember something, it is generally better to say so than to provide information that is inaccurate.
What Happens If You Are Already in Immigration Court?
If you are already in removal proceedings, an asylum application can become part of your defense against removal.
Defensive asylum cases can involve multiple Immigration Court hearings and may require substantial preparation. The applicant may need to submit supporting documents, prepare a detailed declaration, identify witnesses, address inconsistencies, and present testimony before the Immigration Judge.
The Immigration Court distinguishes between affirmative and defensive asylum applications, with defensive applications generally filed by respondents who are already in removal proceedings.
If you have received a Notice to Appear or already have an Immigration Court hearing scheduled, it is important to discuss your case with an immigration attorney promptly.
Asylum, Withholding of Removal, and Protection Under the Convention Against Torture
People sometimes use the term "asylum" to describe several different forms of protection. However, asylum, withholding of removal, and protection under the Convention Against Torture (CAT) are legally different forms of relief.
Asylum
If asylum is granted, an individual receives asylee status and may generally remain and work in the United States. An asylee may also eventually become eligible to apply for lawful permanent residence and, if otherwise eligible, citizenship.
Withholding of Removal
Withholding of removal has a different legal standard and provides more limited protection.
A person granted withholding generally cannot be removed to the country where their life or freedom would be threatened, but they may potentially be removed to another country. Unlike asylum, withholding of removal does not provide derivative status to a spouse or child.
Convention Against Torture
Protection under the Convention Against Torture, commonly called CAT protection, is another form of protection that may be available in certain circumstances when a person can establish that they are more likely than not to be tortured if removed.
These protections have different requirements and consequences. An asylum attorney should evaluate the facts of the case to determine which forms of protection may be available.
Can Asylum Lead to a Green Card?
Yes, in certain circumstances.
A person who is granted asylum may eventually apply for lawful permanent resident status, commonly known as a green card, if they meet the applicable requirements.
Obtaining asylum is therefore an important step, but it is not the same thing as immediately receiving a green card. There are additional requirements and procedures involved in becoming a lawful permanent resident.
Can an Asylum Applicant Get a Work Permit?
Asylum applicants may become eligible for employment authorization while their asylum application is pending, subject to the applicable rules and waiting periods.
Work authorization based on a pending asylum application is separate from the grant of asylum itself. USCIS provides specific rules concerning employment authorization based on pending asylum applications.
Because employment authorization rules can change and depend on the circumstances of the case, applicants should review the current requirements before applying.
What Can Cause an Asylum Case to Be Denied?
There are many reasons an asylum application may encounter problems or be denied.
Potential issues can include:
- Filing after the one-year deadline without establishing an applicable exception
- Failing to establish persecution or a well-founded fear of persecution
- Failing to connect the persecution to a protected ground
- Inconsistent statements
- Problems with credibility
- Insufficient supporting evidence
- Certain criminal convictions or immigration violations
- Previous asylum applications
- Previous immigration proceedings
- The availability of protection or relocation within the applicant's home country
- Certain bars to asylum under U.S. immigration law
This is why an asylum case should be evaluated based on the applicant's complete immigration history and personal circumstances, rather than simply looking at one part of the story.
What If You Missed the One-Year Asylum Deadline?
Missing the one-year deadline does not necessarily mean that every asylum claim is automatically impossible.
U.S. immigration law provides limited exceptions to the one-year filing requirement, including certain circumstances involving changed circumstances or extraordinary circumstances. Whether an exception applies depends on the specific facts and timing of the case.
If you have been in the United States for more than one year and believe you may qualify for asylum, it is still worth having your situation evaluated by an immigration attorney rather than assuming that you are automatically disqualified.
Can an Asylum Case Include Family Members?
Depending on the circumstances, an individual granted asylum may be able to petition for certain qualifying family members.
The rules concerning spouses and children can be complicated, particularly when family members are outside the United States or when the family relationship existed at different points in the immigration process.
An immigration attorney can explain what options may be available for keeping the family together through the asylum process.
Why Asylum Cases Require Careful Preparation
An asylum case is more than filling out Form I-589.
The application, personal declaration, supporting evidence, country conditions, testimony, and other parts of the case should tell a consistent and legally relevant story.
At the same time, asylum cases involve deeply personal experiences. Applicants may have experienced violence, threats, imprisonment, discrimination, or other traumatic events. Discussing those experiences in detail can be difficult.
Careful preparation allows an attorney to understand the applicant's history, identify potential legal issues, gather available evidence, and prepare the applicant for the questions that may arise during the process.
Talk to an Asylum Immigration Attorney
If you are afraid to return to your home country, have experienced persecution, or are currently facing removal proceedings, you may have immigration options that you have not considered.
At Jos Immigration Law, we take the time to understand your story and your immigration history. We work with clients to evaluate whether asylum, withholding of removal, CAT protection, or another form of immigration relief may be available.
Our goal is to provide personal, straightforward legal guidance throughout the process. You do not have to navigate the U.S. immigration system alone.
Contact Jos Immigration Law today to schedule a consultation about your asylum case.
This article is for general informational purposes only and does not constitute legal advice. Immigration laws and procedures can change, and the best strategy depends on the individual facts of each case.
