Do I Qualify for Asylum in the US?

Nov 22, 2018 | Benefits, Immigration

United State Immigration Basics: Asylum

There are two types of Asylum in the United States: Affirmative and Defensive. Before we discuss these, it is important to understand that each is overseen by one of the many separate government agencies involved in immigration practices in the US. Asylum involves two of these agencies: the US Citizenship and Immigration Services (USCIS), which falls under the Department of Homeland Security (DHS), and the Executive Office for Immigration Review (EOIR) along with the Board of Immigration Appeals (BIA), which both fall under the Department of Justice (DOJ). Side note: ICE or Immigration and Customs Enforcement also falls under the Department of Homeland Security. (flow chart of the various agencies can be found here).

Who Qualifies for Affirmative Asylum in the United States?

The asylum seeker must be physically present in the US, regardless of whether or not the physical presence is legal or illegal or the asylum seekers current immigration status. The asylum seeker must apply for asylum within one year of their arrival date in the US, unless they can prove that:

  • A change in circumstances that “materially affect[s] their ability for asylum OR extraordinary circumstances relating to the delay in filing” and;
  • Given the change of circumstances or the extraordinary circumstances, they filed within a reasonable amount of time.


How do I file for affirmative asylum in the United States?

You must file a form I-585 application for Asylum and for Withholding of Removal with the USCIS. A link to the form with instructions is found here, however, asylum is a complex process and it is highly recommended that you consult with an immigration attorney for assistance with filing. There is no fee to file and your application must be sent to one of the four processing centers in the US, depending on where you are residing at the time of filing. A USCIS Asylum Officer will interview the asylum seeker and determine if they are eligible for asylum.

What happens if my application is denied?

If you do not already have legal immigration status, the USCIS will issue a form I-862 which is a Notice to Appear (NTA) and refer your case to an immigration judge at the EOIR. We will discuss NTAs in future blog posts.

Can an asylum seeker remain in the US while their application is being processed?

Yes, most asylum seekers are not detained by ICE and may live in the US while their application is being processed. However, most asylum seekers are not authorized to work while they wait for their application to be processed.

Who qualifies for defensive asylum in the United States?

An individual must be in removal proceedings in immigration court with the EOIR. Generally, there are two ways to be placed in a defensive asylum process:

  • Referral from USCIS to an immigration Judge because they were determined to be ineligible for asylum after going through an affirmative asylum process, or;
  • Placement into removal proceedings because either:
    1. They were caught at a “port of entry” without legal means, or in violation of their immigration status, or;
    2. They were caught by U.S. Customs and Border Protection (CBP) while trying to enter the US without proper documentation (illegally) and were placed into removal proceedings but were then found to have a “credible fear of persecution or torture” by an interviewing asylum officer. *link here for “credible fear screening” details. [note that ‘credible fear’ is becoming much harder to prove under the new scrutiny pursued by the Trump administration, an article discussing this can be found here.]

What happens in court for defensive asylum cases in the United States?

The US Government will be represented by an attorney from ICE which acts sort of like a prosecutor in a criminal trial, while the asylum seeker has the right to be represented by an attorney. However, the government does not pay for lawyers for immigration respondents (unlike defendants in criminal trials). This is an adversarial proceeding in which the ICE attorney will present reasons why the individual should not qualify for asylum and the asylum seeker’s attorney will present evidence as to why they should qualify. If the Judge agrees with the asylum seeker’s position then asylum will be granted and usually, the asylum seeker may then be granted a green card by the judge. (Green cards will be discussed in another blog article). If the Judge rules against the asylum, the asylum seeker’s attorney can try to persuade the Judge that another form of relief from removal may be appropriate. If the Judge doesn’t find any relief is appropriate, the Judge will issue a removal for the asylum seeker. The Judge’s decision can be appealed by either side.


All Asylum Seekers must meet the following criteria:

In either affirmative or defensive asylum cases, the asylum seeker must meet the definition of a refugee as defined in the Immigration and Nationality Act (INA).

Any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person habitually resided, and who is unable or unwilling to avail himself or herself of the protection of that country 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” [see INA § 101(a)(42)(A) And, 8 U.S.C. § 1101(a)(42)(A)(2005)] For more information specifically on persecution related to sexual orientation, see the Immigration website.

It is important to understand, however, that official refugee status is different from asylum status in that refugee status is only available to people outside the US at USCIS overseas office, while asylum status is only granted to those inside of the US.

An asylum seeker must establish that there is a well-founded fear of persecution, and specifically that a “threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution.”[see Matter of Laipenieks, 18 I&N Dec. 433, 457 (BIA 1983).; see also Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985).]

Persecution in asylum cases is very detailed and specific to the particular harm that the party is seeking (i.e. race, religion, nationality, social group status, political party, etc.). We will address the individual elements associated with each of the groups listed above in a future immigration blog article.

Jason C. Bost, Sr. is an immigration attorney and the managing partner of the New York Offices of Patel, Soltis & Cardenas LLC. Mr. Bost is admitted as an attorney in the State of New York, as well as in the Courts in the Executive Office for Immigration Review (EOIR), and represents clients in immigration cases in NY, NJ and throughout the United States. Contact our office today with to speak with Mr. Bost and set up a consultation regarding your immigration questions and issues.


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