Immigration, Asylum, and Refugee in America

By Vincent Martin, Immigration Lawyer, Bloomington, MN,

www.cundyandmartin.com

Who is Eligible to Apply?

Asylum may be granted to people who are arriving in or already physically present in
the United States. To apply for asylum in the United States, you may ask for asylum at a
port-of-entry (airport, seaport, or border crossing), or file Form I-589, Application for
Asylum and for Withholding of Removal, at the appropriate Service Center within one
year of your arrival in the United States. You may apply for asylum regardless of your
immigration status, whether you are in the United States legally or illegally.

You must apply for asylum within one year of your last arrival in the United States,
but you may apply for asylum later than one year if there are changed circumstances
that materially affect your eligibility for asylum or extraordinary circumstances directly
related to your failure to file within one year. These may include certain changes in the
conditions in your country, certain changes in your own circumstances, and certain other
events. For a non-exhaustive list of circumstances that may be considered changed or
extraordinary circumstances, see 8 CFR § 208.4. You must apply for asylum within a
reasonable time given those circumstances; however, filing for asylum more than one
year after your last arrival in the United States can make your case very difficult.

You will be barred from applying for asylum if you previously applied for asylum and
were denied by the Immigration Judge or Board of Immigration Appeals, unless you
demonstrate that there are changed circumstances which materially affect your
eligibility for asylum. You will also be barred if you could be removed to a safe third
country pursuant to a bilateral or multilateral agreement. See INA § 208(a)(2).
How Do I Apply?

To apply for asylum, you will need to complete Form I-589, Application for Asylum and
for Withholding of Removal, and follow the instructions carefully.

Can I Still Apply For Asylum Even If I Am Illegally in the United States?

Yes, you may apply even if you are here illegally. You may apply for asylum regardless
of your immigration status as long as you file your application within one year of your
last arrival or demonstrate that you are eligible for an exception to that rule based on
changed circumstances or extraordinary circumstances, and that you filed for asylum
within a reasonable amount of time given those circumstances.

Can I Apply For Asylum Even If I Was Convicted of a Crime?

Yes, you may apply. However, you may be barred from being granted asylum depending
on the crime. See INA § 208(b). You must disclose any criminal history on your Form I-
589, Application for Asylum and for Withholding of Removal, and at your asylum
interview. Failure to disclose such information may result in your asylum claim being
referred to the Immigration Court, and possible fines or imprisonment for committing
perjury.

What About My Spouse and Children?

You must list your spouse and all your children on your Form I-589 regardless of their
age, marital status, whether they are in the United States, or whether or not they are
included in your application or filing a separate asylum application.

You may ask to have included in your asylum decision your spouse and/or any children
who are under the age of 21 and unmarried, if they are in the United States. This means
that, if you are granted asylum, they will also be granted asylum status and will be
allowed to remain in the United States incident to your asylum status. However, if you
are referred to the Immigration Court, they will also be referred to the court for removal
proceedings. You should refer to the instructions in Form I-589 for information on the
documents you will be required to submit establishing your family relationships, such as
marriage certificates and birth certificates.

Children who are married and/or children who are 21 years of age or older at the time
you file your asylum application must file separately for asylum by submitting their own
asylum applications (Form I-589).

What Happens if My Child Turns 21 After I Have Filed My Asylum Application?

Under the Child Status Protection Act (CSPA), signed into law by President Bush on
August 6, 2002, your child will continue to be classified as a child if he or she turned 21
years of age after your asylum application was filed but while it was pending. Your child
must have been unmarried and under 21 years of age on the date that you filed your I-
589. The “filing date” is the date that USCIS received your application.

There is no requirement that your child have been included as a dependent on your
asylum application at the time of filing, only that your child be included prior to the
decision made on your claim. This means that you may add to your asylum application
an unmarried son or daughter who is 21 years of age, but who was 20 at the time you
filed your asylum application.

What is the Fee?

There is no fee to apply for asylum.

How Does The Asylum Officer or Immigration Judge Determine If I Am Eligible
for Asylum?

The Asylum Officer or Immigration Judge will determine if you are eligible by
evaluating whether you meet the definition of a refugee. The definition, which can be
found in section 101(a)(42)(A) of the Immigration and Nationality Act (INA), states that
a refugee is someone who is unable or unwilling to return to and avail himself or herself
of the protection of his or her home country or, if stateless, country of last habitual
residence 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.
The determination of whether you meet the definition of a refugee will be based on
information you provide on your application and during an interview with an Asylum
Officer or at a hearing before an Immigration Judge.

The Asylum Officer or Immigration Judge will also consider whether any bars apply.
You will be barred from being granted asylum under INA § 208(b)(2) if you:
Ordered, incited, assisted, or otherwise participated in the persecution of any
person on account of race, religion, nationality, membership in a particular
social group, or political opinion
Were convicted of a particularly serious crime (includes aggravated felonies)
Committed a serious nonpolitical crime outside the United States
Pose a danger to the security of the United States
Firmly resettled in another country prior to arriving in the United States (see
8 CFR § 208.15 for a definition of “firm resettlement”)

You will also be barred from being granted asylum under INA § 208 if you are
inadmissible under INA § 212(a)(3)(B) or removable under INA § 237(a)(4)(B) because
you:
Have engaged in terrorist activity;
Are engaged in or are likely to engage after entry in any terrorist activity (a
consular officer or the Attorney General knows, or has reasonable grounds to
believe, that this is the case);
Have, under any circumstances indicating an intention to cause death or
serious bodily harm, incited terrorist activity;
Are a representative of
a foreign terrorist organization, as designated by the Secretary of
State under section 219 of the INA, or
a political, social, or other similar group whose public
endorsement of acts of terrorist activity the Secretary of State has
determined undermines United States efforts to reduce or
eliminate terrorist activities;*
• Are a member of a foreign terrorist organization, as designated by the
Secretary of State under section 219 of the INA, or which you know or
should have known is a terrorist organization;
• Have used a position of prominence within any country to endorse or
espouse terrorist activity, or to persuade others to support terrorist activity or
 a terrorist organization, in a way that the Secretary of State has determined
undermines United States efforts to reduce or eliminate terrorist activities.*

*These two categories were added by the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA
PATRIOT Act, P.L. 107-56, October 26, 2001), which was passed in response to the
September 11, 2001 terrorist attacks.

What Will Be My Status After I Am Granted Asylum?

You will have asylee status. You will receive an I-94 Arrival and Departure record
documenting that you are able to remain indefinitely in the United States as an asylee.
You will be authorized to work in the United States for as long as you remain in asylee
status. You may obtain a photo-identity document from USCIS evidencing your
employment authorization by applying for an Employment Authorization Document
(EAD). You will also be able to request derivative asylum status for any spouse or child
(unmarried and under 21 years of age as of the date you filed the asylum application, as
long as your asylum application was pending on or after August 6, 2002) who was not
included as a dependent in your asylum decision and with whom you have a qualifying
relationship. This means that you will be able to petition to bring your spouse and/or
children to the United States, or allow them to remain in the United States indefinitely
incident to your asylee status.

Can Asylum Status Be Terminated?

Yes. Your asylee status may be terminated if you no longer have a well-founded fear of
persecution because of a fundamental change in circumstances, you have obtained
protection from another country, or you have committed certain crimes or engaged in
other activity that makes you ineligible to retain asylum status in the United States. See
INA § 208(c)(2). An asylee is not a lawful permanent resident. You may apply for
lawful permanent resident status after you have been physically present in the United
States for a period of one year after the date you were granted asylum status.

What Does It Mean to be Referred to Immigration Court?

This means that the Asylum Officer was unable to approve your asylum application and
you are not currently in valid status. You will receive charging documents that place you
in removal proceedings in Immigration Court. Your asylum application will be referred
to the Immigration Court for an Immigration Judge to decide during the removal
proceedings.

When Can I Apply To Become a Lawful Permanent Resident?

You may apply for lawful permanent resident status under INA § 209(b) after you have
been physically present in the United States for a period of one year after the date you
were granted asylum status. To apply for lawful permanent resident status, you must
submit a separate Form I-485, Application to Register Permanent Residence or Adjust
Status, for yourself and each qualifying family member.

Can I Travel Outside the United States?

If you are applying for asylum and want to travel outside the United States, you must
receive advance permission before you leave the United States in order to return to the
United States. This advance permission is called Advance Parole. If you do not apply
for Advance Parole before you leave the country, you will be presumed to have
abandoned your application with USCIS and you may not be permitted to return to
the United States. If you obtain advance parole and return to your country of feared
persecution, you will be presumed to have abandoned your asylum request, unless you
can show compelling reasons for the return. If your application for asylum is approved,
you may apply for a Refugee Travel Document.

Who Can Help Me?

Applying for asylum is one of the most difficult procedures there is under the
immigration law. Careful detail must be taken in all aspects of the application, from
drafting the form, to inclusion of evidence, to preparing for the asylum interview. The
representation and advice of a skilled immigration lawyer may be well worth the cost.