Application for Asylum and Withholding of Removal

Route

Special Statuses

Description

Any Migrant who has been persecuted or fears future persecution in a country of origin due to their race, religion, nationality, political opinion and/or membership in a particular social group, may apply for asylee status in the United States. Any Migrant regardless of the country of origin and current immigration status, may apply for asylum. The Migrant applying for asylee status must be physically present in the United States and/or be present at a port of entry seeking admission. Additionally, the Migrant must file an application within one (1) year of their date of admission or entry date to the United States to be eligible for asylum. There are exceptions to this rule that should be evaluated by a licensed attorney and/or an accredited legal representative prior to filing an application after 1 year of admission or entry to the United States.

Applying for asylee status in the United States is a complex multi-step process with strict eligibility requirements. Migrants must have clear knowledge of the respective jurisdiction over their asylum application to avoid unnecessary processing delays. Either the United States Citizenship and Immigration Services (USCIS) Asylum Office or the Executive Office of Immigration Review (EOIR) currently handle the processing of all asylum claims. In the situation where the Migrant entered the United States via lawful admission, or with a valid visa, the USCIS Asylum Office will generally have jurisdiction over the asylum claim. The asylum office will also generally have jurisdiction over non-detained Migrants enter the United States unlawfully. However, in the situation where the Migrant entered the United States and was detained by U.S. Customs Border Patrol or placed in removal proceeding, the EOIR will have jurisdiction over the asylum claim.

It is important to note that asylum claims should be well documented, where documentation is available, or otherwise be supported by a detailed claim. If the Migrant has a criminal history, court documentation or certified dispositions are generally also required to be submitted. There are currently at least ten (10) USCIS Asylum Offices and it is important to follow the precise mailing instructions for an application as it can change from one day to the next. Unfortunately, it can take days, weeks or even months to discover that one’s application was rejected because it was filed at the wrong address.

After submitting an asylum application, a Notice of Receipt will be issued by USCIS. This notice serves an important role as it verifies that application was submitted by a certain date. Additionally, the Migrant will receive a Notice Biometrics following the Notice of Receipt.

As the asylum claim review process advances, the Migrant will receive a Notice for Interview with the local USCIS Asylum Office. The Migrant must provide USCIS with a change of address form as soon as their address changes to avoid undelivered or misdelivered USCIS notices.

The Migrant should attend the scheduled interview with the USCIS Asylum Office, as failure to do so may result in a denial and referral to an Immigration Judge. At the USCIS Asylum Office interview, the Migrant will be interviewed extensively by an Asylum Officer regarding their asylum claim. If approval is granted, the Migrant may subsequently apply for adjustment of status or green card after 1 year of having asylum status. Unfortunately, if the Asylum Officer denies the asylum claim, the Migrant may be referred to the EOIR. The immigration court will then decide the Migrant’s asylum claim.

In the situation where the Migrant entered the United States without legal admission and was detained by immigration, the Migrant may have received a Notice to Appear (NTA). This NTA should have the Migrant’s alien number, which is highly important for the purpose of filing the asylum application with EOIR. In addition, the Migrant may have been interviewed by U.S. Customs and Border Patrol Officer regarding the asylum claim. It is important that the Migrant retain all documentation provided at the time of detention and release from the detention center as it may be needed to make important immigration decisions.

If the Migrant no longer resides in the same address or state where the detention occurred, the Migrant must comply with two additional procedures. First, the Migrant must file an EOIR Change of Address form with the assigned EOIR court, must serve the Office of Chief Counsel. Second, the Migrant must file a Motion to Change Venue (MTV) with the EOIR court with active record of any immigration proceedings if the assigned court is no longer the court that has jurisdiction. The approval of an MTV will transfer the case to the correct court, where the Migrant is currently residing. The Migrant must comply with all of the asylum requirements discussed above as well as any additional requirements imposed by any Immigration Judge or the immigration court. If denied, any Migrant that is denied asylum with USCIS or the EOIR may appeal.

At an Individual Hearing, the Migrant as well as any supporting witness will be required to provide testimony. Additionally, the Migrant or their licensed attorney and/or a legal representative may provide evidence and/or make legal arguments to support the asylum claim. The Immigration Judge will consider opposing arguments made by Chief and then, issue a decision approving or denying the asylum claim.

Benefits

The filing of an asylum application does not grant any Migrant immediate lawful status in the United States. However, the benefit of applying for asylee status, either with USCIS or EOIR, is the opportunity to obtain temporary protection against deportation while the asylum case is pending. The Migrant may also become eligible to apply for an employment authorization document (EAD) and a social security number pursuant to a pending asylum application. If the Migrant is granted asylee status, he or she may be eligible to apply for adjustment of status (green card) and future processing of U.S. citizenship.

Derivative Dependents

As part of the asylum application, the Migrant may include a spouse and/or unmarried child(ren) under the age of 21 years old. However, the Applicant’s spouse or child(ren) must be physically present in the United States at the time of approval. There is a separate process available to dependents of asylees that are abroad.

Process Description

The asylum process and timeframes vary depending on the agencies’ internal policies for handling asylum applications. Asylum applications timeframes vary, and cases may take months or years.

Unfavorable Circumstances

For some individuals, immigration is a complex process to navigate through due to the strict requirements and interpretation of the law. A Migrant’s asylum claim can be difficult to prove and obtaining credible evidence from the Migrant’s country of origin can be a challenging process. Additionally, all evidence obtained in a foreign language must be translated to comply with USICS and EOIR requirements.

Please consider that filing an asylum application with the wrong jurisdiction can also result in an unfavorable decision or delays. Past or present criminal history and/or previous immigration history related to illegal entries, prior deportations, and/or previous immigration benefit denials, may impact an asylum decision. Although, some factors may not necessarily cause the denial, it is best to consult with a licensed attorney and/or an accredited legal representative to confirm eligibility and to establish best course of action. A licensed attorney may be able to assess the Migrant’s circumstances accordingly to the law, immigration bars, and restrictions.

Relevant Links List

Name Description Website
USCIS Affirmative Asylum Process Website contains additional information regarding the asylum affirmative process. https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/the-affirmative-asylum-process
USCIS Asylum Website contains additional information regarding U.S. Citizenship and Immigration Services (USCIS) asylum. https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum

Citations

Asylum applications are processed and adjudicated under complex and strict eligibility requirements. Certain relevant laws and regulations are specified under the Immigration and Nationality Act (INA), Code of Federal Regulations (CFR) and/or U.S. Code. Some of the applicable laws and regulations include:

Citations List

Citations Description Section Title
8 CFR § 208.13(b) Code of Federal Regulations (CFR) establishes regulations imposed by the Federal Government of the United States. Establishing Asylum Eligibility
INA § 208 Immigration and Nationality Act (INA) is a federal law that establishes immigration, naturalization, and exclusion of aliens. Asylum
INA § 209 Immigration and Nationality Act (INA) is a federal law that establishes immigration, naturalization, and exclusion of aliens. Refugees
8 U.S.C. § 1153 The U.S. Code (USC) contain general and permanent laws of the United States. Allocation of Immigrant Visas
8 U.S.C. § 1158 The U.S. Code (USC) contain general and permanent laws of the United States. Asylum

Forms

Related Forms List

Name Description No. Fee
Application for Asylum and Withholding of Removal An Application for Asylum and Withholding of Removal should be filed with the respective jurisdiction, U.S. Citizenship and Immigration Services (USCIS) Asylum Office or the Executive Office of Immigration Review (EOIR). I-589 $0
Change of Address with EOIR A Change of Address form must be filed with the respective Executive Office of Immigration Review (EOIR). EOIR-33 $0
Change of Address with USCIS A Change of Address form must be filed electronically with United States Citizenship and Immigration Services (USCIS). AR-11 $0

Supporting Documents

An asylum application must generally be supported by documentation and/or credible testimony of previous persecution or fear of future persecution in the country of origin due to the Migrant’s race, religion, nationality, political opinion and/or membership in a particular social group. Some of the required supporting documentation may include:

Supporting Documents List

Name Description
Evidence of Country Conditions
Evidence of Involvement in A Particular Political Party
Evidence of Persecution
Evidence of U.S. Admission
Notice to Appear
Passport-Style Photographs Passport-styles photographs must comply with USCIS' requirements related to sizing, position, and color.
Personal Documentation Personal documentation must be submitted to verify the Sponsor's and Migrant's identity. Personal documentation includes birth certificates, passport biographical pages, identification IDs. All documentation must be in compliance with the U.S. Department of State - Bureau of Consular Affairs which requirements vary by country.
Proof of Previous Marriage(s) Termination
Verification of Current Marriage