Asylum Basics

Asylum Law Basics 101

INTRODUCTION

  • The complex and often perilous journey of asylum seekers to the United States highlights both the desperate circumstances driving them and the challenging legal landscape they navigate in search of safety and stability.

 

THE GOVERNING LAW

  • There are various laws and regulations governing immigration in the United States, including international laws and regulations, as well as regional laws and regulations.
  • In 1951, the United Nations met and developed an international standard explaining the term “refugee” with the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. The 1951 Convention sets out the guiding principles concerning refugee law.
  • In addition, asylum law and asylee seekers, are covered and protected by international human rights laws, applying to all “states”, or countries, as covered in the 1948 Universal Declaration of Human Rights.
  • Other international sources include the UN General Assembly Resolutions and Declarations, UNHCR Executive Committee Conclusions, and UNHCR Guidance.
  • As it concerns the United States, Section 208 in the Immigration and Nationality Act (“INA”) is the governing law, and agency regulations held in 8 CFR § 208 provide additional guidance regarding the asylum process.
  • 207(e) in the INA, the United States President sends a proposal to Congress setting an “asylee ceiling” or the maximum asylees to be admitted into the United States each year.

 

THE CRITERIA

  • “Asylee” is the term used to describe someone who has been granted asylum in the United States.
  • An asylum seeker under United States Immigration laws can legally remain in the United States without the threat that they can, or will be, deported. Asylee can seek asylum status based on race, religion, nationality, political opinion, or membership in a particular social group (“PSG”)
  • To obtain asylum in the United States, certain criteria must be established. In order to be granted asylum in the United States, the applicant must: (1) be located outside the United States; (2) have special humanitarian concern in the United States; (3) demonstrate persecution or demonstrate that they believe that they will be persecuted based on race, religion, nationality, political opinion, or membership in a particular social group; (4) not be established or settled in another country; and (5) would otherwise be admissible in the United States.
  • At all times, the individual seeking protection bears the burden in proving that said criteria has been established.

 

AFFIRMATIVE AND DEFENSIVE ASYLUM APPLICATIONS

  • An asylum seeker who is in the United States either legally or illegally can seek asylum when they are NOT already in deportation proceedings and can make an affirmative application with USCIS.
  • When an asylum seeker is already involved in deportation proceedings with the immigration court, or when the asylum seeker has entered the United States without the required documentation to properly seek asylum, they must file a defensive application with USCIS, which serves as a defense to deportation proceedings.

 

THE I-598 AND SUPPORTING DOCUMENTATION

THE I-598

  • To obtain asylum in the United States, the individual seeking asylum must apply. The application has several components: (1) the USCIS Application (also known as the “I-598”); (2) a written declaration detailing their basis in making the application; (3) documentation to corroborate the applicant’s claims; and (4) indexed country conditions document.
  • Although the I-598 is the only required document, submitting the additional documentation helps to guarantee asylee status.

 

THE WRITTEN DECLARATION

  • Among other things, the declaration should include detailed accounts showing incidents where the applicant has experienced mistreatment, including detailed accounts where others know, or witnessed, the applicant experiencing mistreatment.
  • A sample declaration can be seen here.

 

COUNTRY CONDITIONS

  • The Country Conditions should be tailored to the applicant and the particular claims under which they are seeking asylum.
  • The goal is to show that the applicant truly believes they will be persecuted on this basis and that, based on the evidence, it is reasonable to believe they have been or will be persecuted on this basis.
  • Citizenship and Immigrations Services (“USCIS”) Immigration and Customs (“ICE”) generally rely on the U.S. State Department reports on human rights in the applicant’s home country. Accordingly, it is recommended that this report be used as a guiding document.
  • These reports can be seen here.

 

INDEXED COUNTRY CONDITIONS

  • The Indexed Country Conditions is essentially documentation organizing the applicant and/or their attorney’s research on the Country Conditions.
  • The Index should include only the most recent articles, reports, or other evidence corroborating the applicant’s claims (within the last 5 years).
  • A sample Index can be seen here.

 

THE INTERVIEW

  • Once the applicant completes their I-598, two copies must be sent to the CIS Service Center. Once the I-598 has been received, an interview will be scheduled.
  • An applicant may only receive three weeks’ notice regarding their interview date.
  • The applicant should expect to be asked to discuss sensitive topics, including the persecution or treatment they received in their home country.
  • The applicant should be prepared to bring a passport, other travel documents and/or personal documents that can establish the applicant’s identity, any documentation supporting the applicant’s claim that was not submitted with the applicant’s I-598, an interpreter, provided the applicant cannot communicate in English.
  • It is also recommended that the applicant have an attorney attend and present them during the interview.
  • Generally, asylum interviews take around one hour to complete. However, the interview can take longer depending on each case.
  • You can learn more about the regulations and procedures regarding asylum interviews in 8 CFR 208.9.

 

THE DECISION

  • Once the interview has occurred, the applicant can generally expect to receive a decision within around two weeks. Although, it is not uncommon that an applicant can be waiting months to have a decision handed down due to a nation-wide backlog in processing applications due to an increase in applications and COVID-19.
  • The time it takes to have a decision rendered has no bearing on whether an application will be denied or accepted.

 

ASYLEE STATUS

  • When an applicant is granted asylee status, it means that they can legally live and work in the U.S. and can eventually apply to be a permanent resident or legal U.S. citizen. However, asylee status, and the automatic right to live and work in the U.S., should not be viewed as a permanent right.
  • Homeland Security still maintains the right to reopen an asylee’s case and revoke asylee status under certain circumstances, such as when: (1) the asylee’s home country’s conditions have improved such that the asylee no longer believes they will persecuted; (2) the asylee commits a serious crime, either persecutory or non-political in nature outside the U.S.; (3) the asylee poses a threat to national security; (4) the asylee voluntarily returns to their home country; (5) the asylee has acquired a new nationality; (6) the asylee settled outside the U.S. prior to their arrival; or (7) there is a bi-lateral agreement with a third country willing to provide protection to the asylee.
  • Once asylee status is granted, the right to work is automatic, and there is no need to complete any additional documentation.

 

PERMANENT RESIDENCE STATUS AND NATURALIZATION

  • Once an asylee has been in asylee status one year, the asylee can apply to be a legal, permanent resident. To be able to change their status, it must be shown that the asylee: (1) has remained physically present in the United States since being granted asylum; (2) remains a “refugee”; (3) has not established themselves in any other country; (4) is not otherwise “inadmissible”.
  • A permanent resident can apply to become a naturalized citizen once 5 years has elapsed since they were granted permanent residence status.

 

ASYLEE BENEFITS AND OBLIGATIONS

  • Asylees can utilize certain government resources, such as Social Security Income, Medicaid, and Food Stamps. However, access to these resources is generally limited in time, and may only extend three months to one year depending on the particular program or resource at issue.
  • However, along with the government resources provided to asylees, asylees are also required to pay taxes and report their income to the Internal Revenue Service (“IRS”). In addition, males between 18 and 26 must register with the Selective Service System (“SSS”).
  • It is essential that an asylum seeker does NOT travel to or return to their home country until they are a United States citizen and can travel with a U.S. passport, as this could give the appearance that the asylum seeker no longer believes that they will be persecuted.

 

CONCLUSION

In conclusion, the journey of asylum seekers to the United States is fraught with challenges, yet it underscores their resilience and determination for a safer life. Addressing their needs with compassion and implementing fair policies are essential for upholding human rights and the nation's values. By fostering an inclusive and supportive environment, the United States can continue to be a beacon of hope for those seeking refuge from persecution and violence.

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