Navigating the modern patchwork of haphazard immigration laws, policy, and executive enforcement is a daunting process for those seeking asylum in the United States, who often lack resources and face great difficulty trying to learn immigration laws and processes.  Best practices regarding when and how to apply, and how to best frame an asylum-seeker’s story, are crucial to achieving approval.  To apply for asylum, an applicant must be physically present in the United States.[1]  Asylum cannot be pursued at a diplomatic establishment elsewhere.  Immigration status does not affect the right to apply.  Applicants without proper legal documentation may risk detention by Immigration and Customs Enforcement (ICE), but their right to apply is unaffected.

There are two paths to asylum: “affirmative” and “defensive.”  To utilize the affirmative  process, the asylum-seeker proactively files an asylum application, the Form I-589, with U.S. Citizenship and Immigration Services (USCIS).  The affirmative process is advantageous because it offers two opportunities to obtain asylum.  If the initial I-589 application is not approved, the applicant may still seek asylum through the defensive process, through which his/her case is referred to an Immigration Judge at the Executive Office for Immigration Review (EOIR, the “immigration court”), heard anew, and therefore provided another chance at asylum.  To apply via the affirmative process, the application must be received by USCIS – not merely postmarked – within one year of the applicant’s physical arrival in the United States.  An extension may be granted if the applicant can show extraordinary circumstances prevented him/her from filing or materially affected asylum eligibility, but an applicant must have a convincing case to qualify.

The second path is the defensive process, in which an applicant requests asylum as a defense against removal/deportation.  This process is frequently the result of the applicant’s apprehension by ICE or U.S. Customs and Border Protection in or while trying to enter the United States without proper legal documentation.  In some cases, such applicants may have been placed in an expedited removal process but found to have a credible fear of persecution or torture upon removal.  Lastly, some applicants are referred to the defensive process after disapproval of their initial asylum application via the affirmative process.  Applicants seeking asylum through the defensive process have one opportunity to obtain asylum.  Their cases are heard in an adversarial proceeding before an Immigration Judge, with arguments by both the applicant or his attorney and ICE, and the judge decides whether asylum should be granted.  If the judge does not order asylum granted, he/she will determine whether the applicant is eligible to remain in the United States on another basis, such as withholding or deferral of removal, which allow the applicant to remain in the United States, but with no path to permanent residency and considerably fewer benefits.  If these bases are not available, the judge will order the applicant removed.  Both the applicant and ICE can appeal the judge’s decision.  Because an unfavorable result in immigration court frequently results in removal, applicants should utilize the affirmative process whenever possible to seek asylum without going to court.

An asylum-seeker should apply via the affirmative process within one year of his/her physical arrival.  First, he/she should obtain legal representation.  The applicant and his/her attorney must sign Form G-28, which authorizes attorney to file application documents on the applicant’s behalf.  It must be printed on blue paper and submitted with asylum documents filed with any branch of the U.S. Department of Homeland Security, including local USCIS field and asylum offices.

Second, the applicant and his/her attorney should file the Form I-589 as soon as possible.  The applicant should gather all relevant information, including past employment and residences dating back five years, with as much specificity as possible.  In the I-589, the applicant must establish that he/she 1) meets the statutory definition of “refugee,”[2] 2) is not barred from asylum, and 3) merits a grant of asylum in the exercise of the adjudicator’s discretion.  Specifically, the applicant must show he/she was persecuted in his/her home country in the past or has a well-founded fear of persecution or torture due to race, religion, political opinion, or membership in a particular social group.

If the applicant has legal documentation to be in the United States temporarily, him/her and his/her attorney should file Form I-589 with USCIS before the documentation lapses to minimize risk of ICE enforcement.  Once the I-589 is submitted, the applicant will be allowed to remain in the United States pending the outcome of the process.  An Asylum Interview will be scheduled at a local USCIS field office or Asylum Office within approximately six months.  Prior to this interview, the applicant and his/her attorney must gather documents and information – e.g. hospital reports, affidavits (preferably notarized) by witnesses who witnessed persecution or torture, and photographs – that support their case.  The attorney should also identify possible expert witnesses who can testify as to country conditions and the medical and psychological condition of the applicant.  The attorney should draft a legal brief with supporting documents for the interview.  At the interview, which is not adversarial, the applicant will have the chance to make his/her case and present available information.  Hopefully, asylum will be approved; if not, the applicant will have another opportunity to make his/her case in immigration court.

[1] “Obtaining Asylum in the United States.”  U.S. Citizenship and Immigration Services.  October 19, 2015.  <https://www.uscis.gov/humanitarian/refugees-asylum/asylum/obtaining-asylum-united-states>

[2] “[A]ny 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 last habitually resided, and who is unable or unwilling to return to, and 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.”  INA § 101(a)(42)(A).