Asylum and Refugee

Asylum and Refugee

Who is a refugee?

A refugee is someone who has fled their home country because they face serious human rights violations and persecution. The hazards to their safety and lives were so grave that they felt they had no alternative but to flee their nation and seek refuge elsewhere because their own government could not or would not protect them. Refugees are entitled to international assistance.

Who is an asylum-seeker?

A person who has left their country and is seeking protection from persecution and serious human rights violations in another country, but who has not yet been officially recognized as a refugee and is awaiting a judgment on their asylum claim, is known as an asylum seeker. Asylum is a basic human right. This means that everyone should be free to seek asylum in another country.

Who is a migrant?

A migrant has no legal definition that is universally acknowledged. Amnesty International, like most agencies and organizations, considers migrants to be people who are living outside their country of origin but are neither asylum seekers or refugees.

Some migrants leave their home nation in order to work, study, or reunite with relatives, for example. Others believe they have no choice but to flee because of poverty, political upheaval, gang violence, natural disasters, or other dire circumstances.

It is critical to recognize that even if migrants are not fleeing persecution, they are nevertheless entitled to have all of their human rights safeguarded and respected, regardless of their status in the country to which they have relocated. All migrants must be protected against racist and xenophobic violence, exploitation, and forced labor by governments. Migrants should never be imprisoned or coerced to return to their home countries unless there is a valid justification for doing so.

Obtaining Asylum in the United States

Forms of asylum:

In the United States, there are two ways to seek refuge. Individuals who are not in removal proceedings go via the affirmative asylum process, whereas those who are in removal proceedings go through the defensive asylum process. When the US government orders your removal (deportation) from the country, you are in removal proceedings.

Source: USCIS

Affirmative Asylum:

A person who is not in removal proceedings can petition for asylum directly with the United States government, through the United States Citizenship and Immigration Services (USCIS), a division of the Department of Homeland Security (DHS). If the asylum application is denied by a USCIS asylum officer, the applicant is referred to removal proceedings, where he or she might request asylum again through the defense process and appear before an immigration judge.

Defensive Asylum:

In removal proceedings, a person may petition for asylum defensively by filing an application with an immigration court at the Department of Justice's Executive Office for Immigration Review (EOIR). In other words, asylum is sought "as a defense against deportation from the United States."

You must be physically present in the United States to apply for asylum under the affirmative asylum process. Regardless of how you came in the United States or your present immigration status, you can ask for asylum.

Unless you can show the following, you must petition for asylum within one year of your previous arrival in the United States:

  • Changed circumstances fundamentally affecting your asylum eligibility or unusual circumstances connected to the filing delay; and

  • Given the circumstances, you filed in a reasonable length of time.

The Affirmative Asylum Process

​STEP 1: Arrive in the U.S.

You must be physically present in the United States to apply for asylum under the affirmative asylum process

STEP 2: Apply for Asylum

You must file Form I-589, Application for Asylum and Withholding of Removal, with USCIS within one year of your last arrival in the United States to be considered for asylum (unless you qualify for an exception to the 1-year filing deadline).

You may not be eligible to petition for asylum under section 208(a)(2)(B) of the Immigration and Nationality Act if you do not file Form I-589 within one year of your arrival in the United States (INA).

STEP 3: Fingerprinting and Background/Security Checks

You should read the ASC Appointment Notice and bring it with you to your appointment with the ASC for fingerprinting. As an asylum seeker, you do not have to pay a fingerprinting cost.

STEP 4: Receive an Interview Notice

USCIS will schedule an interview with an asylum officer at either a USCIS asylum office or a USCIS field office, depending on where you live (also called a circuit ride location).

STEP 5: Interview

You may attend the interview with an attorney or an authorised representative. At the interview, you must also bring your spouse and any children who are claiming derivative asylum benefits.

If you are unable to complete the interview in English, you must bring an interpreter with you.

STEP 6: Asylum Officer Makes Determination on Eligibility and Supervisory Asylum Officer Reviews the Decision

To be eligible for asylum, you must fit the definition of a refugee.

The asylum officer will decide if you are eligible for:

  • Are entitled to file an asylum application;

  • Meet the INA's section 101(a)(42)(A) definition of a refugee;

  • Are not eligible for asylum under the INA's section 208(b)(2).

STEP 7: Receive Decision

In most situations, you will return to the asylum office two weeks after the asylum officer questioned you to pick up the verdict.

More Resources: USCIS

The Defensive Asylum Process

Part 1: Master Calendar Hearing

  • The judge will ask you if each of the counts against you is true during one of your initial hearings, also known as a Master Calendar Hearing, at the start of your case. Pay attention to the questions and don't agree to information that aren't entirely accurate.

  • Following that, the judge should ask you certain questions to determine if you are eligible for a visa to remain in the United States. The judge should also inquire if you are terrified of returning to your homeland. Explain to the judge why you want to petition for asylum, withholding of removal, or CAT protection.

Part 2: Individual or Merits Hearing

  • This is the last hearing in your case, during which the judge will listen to your tale and ask you and any witnesses, if any, questions regarding your application and anything else you turn in for the court to consider.

  • You get to share your story in your last hearing, and the court decides your case. The Immigration Judge, an interpreter (if you do not speak English fluently), the lawyer representing DHS (known as the "trial attorney"), and you will all be present at the hearing. If there are witnesses, they must also be present. You should be aware that the Department of Homeland Security may have witnesses against you, but this is an uncommon occurrence.

  • The judge normally decides whether you will be granted asylum/withholding of removal at the conclusion of the hearing. However, a judge may take some time to consider or write down his or her verdict, in which case you will have to wait a little longer.

Part 3: Appeals

  • Both you and DHS have the option of appealing the decision to the Board of Immigration Appeals, which is a higher court (or BIA).

  • The judge will ask both you and the trial attorney whether you want to "reserve appeal," that is, whether you want to keep your right to appeal, as soon as the court tells you the judgment (unless you hear it later, in writing). You can also "waive appeal," which indicates you're giving up your right to file an appeal.

  • If you lose and "reserve appeal," you must send your papers to the Board of Immigration Appeals by the 30th day, or the judges will not read them and you will lose your right to appeal.

Family Reunion

You may be eligible to petition for your relatives to join you in the United States if you have entered the United States as a refugee or have been granted asylum in the United States. Ashlees and refugees are generally encouraged to work with a resettlement agency or an attorney for these family reunion procedures.

Using Form I-730 to follow-up on family reunion

Your spouse and/or children under the age of 21 (beneficiaries) may be able to join you in the United States if you have been granted refugee status or asylum in the United States. For your child to be permitted to join you, they must have been under the age of 21 at the time your Form I-590 was filed (if you are a refugee) or your Form I-589 asylum application was filed (if you are an asylum seeker). Form I-730 is used for submitting applications, and you will be referred to as either a follow-to-join refugee or follow-to-join asylee, depending on your status as a refugee or asylee. I-730 petitioners need not be refugees or asylees in order to be interviewed in any country where the United States conducts interviews. Applicants should file their applications within two years of their arrival in the United States (if they are refugees) or from the date of their grant of asylum (if they are asylum seekers).

Priority 3 (P-3) Family Reunification

Priority 3 (P-3) Family Reunification is another option for refugees and asylees seeking to reunite with their families. You can seek to have your parents, spouses, and unmarried children under the age of 21 join you in the United States if you are a refugee or asylee of a specified nationality in the United States. P-3 Family Reunification is currently open to all ethnicities.

Within five years of your arrival in the United States (if you are a refugee) or your grant of asylum, you must file an Affidavit of Relationship (AOR) with a refugee resettlement organization in the United States (if you are an asylee). An AOR enables a qualifying family member outside of their country of origin entry to the United States Refugee Admissions Program if it is authorized (USRAP). To be accepted to the United States, they must first go through conventional resettlement procedures in the United States and independently qualify as refugees. To prove family ties, relatives may be forced to submit to DNA testing.

If eligible, we do not recommend that refugees and asylees apply for both the Following-to-Join Family Reunification and the P-3 Family Reunification using Form I-730.

Following-to-Join for Special Immigrant Visas (SIV)

You can apply for your spouse and unmarried children under the age of 21 to join you in the United States if you are an Iraqi or Afghan Special Immigrant Visa candidate. At the time of your entrance to the United States, you must have had a relationship with your derivative. The United Nations High Commissioner for Refugees (UNHCR) is not involved in this family reunion.

You can find more information on Following-to-Join for Iraqi SIVs here and Afghan SIVs here.  

Conclusion

I hope this information was useful. Complex immigration processing can be incredibly complicated and stressful for everyone. Before filing this application, you should seek legal advice from an experienced attorney.

Immigrationservice.com can assist you and will be there for you every step of the journey. Please contact us via phone or email.