ASYLUM APPLICANT
You qualify for asylum if you have been persecuted or have a “well-founded fear of persecution” in your country based on (1) political opinion, (2) religion, (3) race, (4) nationality, or (5) membership in a particular social group
On March 23, 2023, the US and Canada reached a deal to turn away persons seeking refuge who try to cross their borders unlawfully.
On February 21, 2023, the DHS & DOJ proposed a rule to make it more difficult to apply for refuge in the United States at the US – Mexico border.
On November 9, 2022, the USCIS announced that Affirmative Asylum applications can be filed online.
On December 2, 2021, in compliance with an order from the U.S. Supreme Court, the Biden Administration released guidance regarding the re-implementation of the Migrant Protection Protocols (aka “the Remain in Mexico Program”).
On June 16, 2021, a Attorney General Merrick Garland reversed Trump era decisions making it all but impossible for persons to gain asylum based on fears of domestic and/or gang violence.
Use Form I-589 to apply. Attach a detailed affidavit and documentation in support of your application. There is no filing fee.
To apply for an Employment Authorization Document (EAD) based on your pending I-589, you may file Form I-765 150 days after you file your asylum application.
Before you submit your I-589 packet, you may find it helpful to read 4 Tips to Help You Win Your Case BELOW
If you are outside the US, you may apply for refugee status based on these same criteria. Your fear of persecution must be either by the government of your country or by a group that the government is unable or unwilling to control.
If you are able to establish past persecution, a presumption arises that you have established a well-founded fear of persecution. The burden of proof shifts to the government to demonstrate that circumstances have changed and that you no longer have a well-founded fear of persecution or that you could avoid persecution by relocating in another part of your country and that it would be reasonable for you to do so.
If you are in lawful immigration status, you can submit an I-589 directly with the appropriate USCIS Service Center. Should your application be denied, you will remain in lawful status.
However, if you are not in lawful status, should your application not be approved by the USCIS, you will be placed in removal proceedings. If you are in removal proceedings before an Immigration Judge, in addition to applying for asylum, you may be eligible to apply for withholding of removal and for relief under the Convention Against Torture (CAT).
Once your I-589 application has been pending for over 150 days, you may apply for a work permit by filing form I-765. If your I-589 application is approved, and your spouse and/or children are outside the US, use form I-730 to bring them to the US as asylees. Once your I-589 is granted, you may apply for a green card although USCIS will only grant your application one year after your I-589 has been approved.
4 ASYLUM TIPS TO HELP YOU WIN YOUR CASE
BY A FORMER INS ATTORNEY
The following asylum tips can help you win your case in Immigration Court or before the USCIS. Less than half of the people who apply for asylum in the United States have their applications approved. Even people who have been arrested, served time in prison and who were tortured in their countries sometimes have their applications denied.
The good news is that you may be able to significantly improve your chances of winning your case if you follow the 4 asylum tips listed below.
Asylum Tips: #1 – Don’t Apply for Asylum Simply to Get a Work Permit
It takes years to get an interview at a USCIS Asylum Office. Yet, filing an asylum application allows one to remain legally in the US, and after 150 days, to apply for an EAD work permit.
Some notaries and immigration “consultants” improperly advise people to apply for asylum simply to get a work permit.
However, doing so is fraud, and could make it difficult, if not impossible, for you to ever become a green card holder or a US citizen.
Do not apply for asylum in the US unless you have been persecuted or have a “well-founded fear of persecution” in your country based on your
Asylum Tips: #2 – Where You Live Affects Your Chances of Winning Your Case
Let’s say that your asylum case is before an Immigration Judge. Of course, you do not get to choose the Judge who will hear your case. But you can choose where you live.
Does this make a difference? Absolutely!
If you live in Atlanta, Georgia, most of the Judges there grant less than 20% of the asylum cases they hear. Not good odds.
However, in California, Immigration Judges grant over 40% of the asylum cases that come before them.
So if you move from Atlanta to California, you can have your case moved to the Immigration Court here and your chances of being granted asylum may improve.
Crazy system, but when your life is on the line, you need to do what is best for you and your family.
Of course, simply moving from one part of the United States to another does not turn a weak asylum case into a strong one. However, if you have a strong case, it can enable to you to have it heard by a fair and impartial judge, not one who is inclined to denial deny 80-90% of the cases that come before him/her.
Also, if you appeal an asylum denial to the Federal Courts, your odds of getting the denial overturned may be higher if you live on the West Coast (9th Circuit Court of Appeals) rather than in Georgia, Alabama or Florida (11th Circuit Court of Appeals). Caveat: changing your residence after the Immigration Judge makes a decision does not change the Appeals Court which has jurisdiction over your case, so it is better to move sooner rather than later.
Asylum Tips: #3 – Hire the Best Attorney You Can Find
According to a 2016 study conducted by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, over 50% of asylum applicants in Immigration Courts who were represented by attorneys had their cases approved.
What is the denial rate for applicants without attorneys? Around 90%. Ouch!
A good attorney will help you gather evidence to support your asylum application, research BIA and Federal Court cases which pertain to your application and prepare you for direct and cross-examination in Court. Of course, not all attorneys are created equal. You need to do your homework before hiring an attorney to assist you.
Be sure to research your attorney’s qualifications. How much experience does he/she have with asylum cases? Check out client reviews for the attorney on sites like Google Reviews.
How much does the attorney charge? Money is important, but choosing the cheapest attorney may not be in your best interest. How much is your life worth?
Asylum Tips: #4 – Hire an Expert Witness to Help You
As a former INS Trial Attorney, I think that it is important for you to realize that while the Immigration Judge, the ICE Trial Attorney and your attorney may all be experts on immigration and asylum laws and regulations, there are professors and journalists who know far more about conditions in a particular country than we do.
Having an expert witness write a report and testify in Immigration Court is very important.
The following example tells you why:
I represented a man from Indonesia who had an asylum case in the San Francisco Immigration Court. He was afraid to return to his country because he was Chinese and a Christian.
Before the hearing started, the Immigration Judge informed us that she had never granted an asylum application to a Chinese Christian from Indonesia. She had always found that they were subject to discrimination, but not to persecution.
Our expert witness was a university professor who had spent many years studying and writing articles about the political situation in Indonesia.
I questioned him about the treatment of Christians in Indonesia. On Christmas Eve in 2000, a number of churches on various islands there were bombed.
Although the Indonesian government accused various terrorist groups of conducting the bombings, our expert had gone to Indonesia to help investigate the bombings. The investigators concluded that it was the government, not terrorists, which bombed the churches.
After questioning our expert, the Immigration Judge granted our client’s application for asylum and the government did not appeal.
Without the expert’s testimony, our client would not have won his case.
A helpful resource is Expert Witnesses in U.S. Asylum Cases: A Handbook.