Asylum In The United States

Once a person is in the United States, a Tampa asylum lawyer can help them get political asylum if they qualify. There are several ways to apply for asylum and/or refugee status. If you need to know whether you may qualify for political asylum, you should consult a licensed Tampa asylum lawyer advice about a case today.

Applying for asylum or refugee status is often done at a U.S. embassy overseas or at the border when the alien attempts to enter the United States. If done at the border, an asylum officer will make a “credible fear” determination, and if he or she determines that the alien does have a credible fear of persecution the officer will refer the case to an immigration judge and often “parole” the alien into the U.S. so he or she can apply for asylum.

If an alien enters the United States, by whatever method, they must file an application for asylum with the service center having jurisdiction over the alien’s place of residence within 1 year. This is a very important provision of law to remember, as if an alien waits too long, he or she may be statutorily ineligible for asylum, no matter how good a claim the alien can make. Once filed the asylum file is sent to an asylum office in the District in which the alien lives. (The asylum office for the Tampa area is in Miami.) The alien will be scheduled for an interview with an asylum officer at that facility.

To make a valid asylum claim, there are four elements that should be established:

  1. Fear of persecution;
  2. The fear must be well‑founded;
  3. The persecution must be on account of race, religion, nationality, membership in a particular social group, or political opinion; and
  4. Inability to return to the country of nationality or last residence because of persecution or a well‑founded fear of persecution.

There has been much litigation regarding these elements and what constitutes a valid asylum claim.  Cases are reviewed under a “totality of factors” test, and many things can be considered under this test.  (A discussion of all the possible discretionary factors would take several articles to complete.)  The upshot of all this is that there are very few clear-cut asylum claims and each one must be reviewed on a case-by-case basis.  That being said, there is one clear case under the law.  The statute grants presumptive eligibility for asylum for people who have been forced to abort a pregnancy or to undergo involuntary sterilization, or who have been persecuted for failing or refusing to undergo such a procedure or for other resistance to a coercive population control program.

There are a couple of other things that should be remembered about asylum claims.  First, asylum will not be granted to anyone who “ordered, incited, assisted, or otherwise participated in the persecution of any person.”  Second, a person who has committed a “particularly serious crime,” such as most aggravated felonies, will not be eligible for asylum.  Third, If an asylum claim is denied by the asylum officer, the case is referred to an immigration judge, and the alien is put into removal proceedings.  If the immigration judge also denies the asylum claim, the alien can end up being deported from the United States.

Finally, there is a specific prohibition on filing “frivolous” asylum claims.  A claim is frivolous if any of the material elements of the application are deliberately fabricated.  If an immigration judge or the Board of Immigration Appeals makes such a finding, the alien is barred permanently from receiving any immigration benefit at all.

Asylum is a good option for people who sincerely fear returning to their home country based upon the above factors, as it allows for work authorization and eventual adjustment of status to permanent residence.  However, a potential asylum seeker should contact a licensed asylum lawyer to evaluate the case and aid in avoiding the pitfalls that may be present in a relatively complex area of immigration law.

Obtaining Asylum In The United States

The two ways of obtaining asylum in the United States are through the affirmative process and defensive process.

Affirmative Asylum With USCIS

To obtain asylum through the affirmative asylum process you must be physically present in the United States. You may apply for asylum status regardless of how you arrived in the United States or your current immigration status.

You must apply for asylum within one year of the date of their last arrival in the United States, unless you can show:

  • Changed circumstances that materially affect your eligibility for asylum or extraordinary circumstances relating to the delay in filing
  • You filed within a reasonable amount of time given those circumstances.

You may apply for affirmative asylum by submitting Form I-589, Application for Asylum and for Withholding of Removal, to USCIS.

If your case is not approved and you do not have a legal immigration status, you will be issued a Form I-862, Notice to Appear, and the case will be forwarded (or referred) to an Immigration Judge at the Executive Office for Immigration Review (EOIR). The Immigration Judge conducts a ‘de novo’ hearing of the case. This means that the judge conducts a new hearing and issues a decision that is independent of the decision made by USCIS.

Affirmative asylum applicants are rarely detained by U.S. Immigration and Customs Enforcement (ICE). You may live in the United States while your application is pending before USCIS.  If you are found ineligible, you can remain in the United States while your application is pending with the Immigration Judge.  Most asylum applicants are not authorized to work.

Defensive Asylum Processing with EOIR

A defensive application for asylum occurs when you request asylum as a defense against removal from the U.S. For asylum processing to be defensive, you must be in removal proceedings in immigration court with the Executive Office for Immigration Review (EOIR).

Individuals are generally placed into defensive asylum processing in one of two ways:·

  • They are referred to an Immigration Judge by USCIS after they have been determined to be ineligible for asylum at the end of the affirmative asylum process, or
  • They are placed in removal proceedings because they:
    • Were apprehended (or caught) in the United States or at a U.S. port of entry without proper legal documents or in violation of their immigration status,
      OR
    • Were caught by U.S. Customs and Border Protection (CBP) trying to enter the United States without proper documentation, were placed in the expedited removal process, and were found to have a credible fear of persecution or torture by an Asylum Officer.

Immigration Judges hear defensive asylum cases in adversarial (courtroom-like) proceedings. The judge will hear arguments from both of the following parties:

  • You  the individual and your asylum lawyers; and
  • The U.S. Government, which is represented by an attorney from Immigration and Customs Enforcement (ICE)

The Immigration Judge then decides whether the individual is eligible for asylum. If found eligible, the Immigration Judge will order asylum to be granted. If found ineligible for asylum, the Immigration Judge will determine whether the individual is eligible for any other forms of relief from removal. If found ineligible for other forms of relief, the Immigration Judge will order the individual to be removed from the United States. The Immigration Judge’s decision can be appealed by either party.

Types Of Asylum Decisions

Grant of Asylum

If USCIS determines that you are eligible for asylum, you will receive a letter and completed Form I-94, Arrival Departure Record, indicating that you have been granted asylum in the United States.

The grant of asylum includes your spouse and minor children, provided that:

  • They were present in the United States
  • They were included in your asylum application
  • You established a qualifying relationship to them

A grant of asylum allows you to apply for:

  • An Employment Authorization Document (EAD)
  • A Social Security card
  • A Green Card (permanent residence)
  •  Immigration benefits for your spouse and unmarried children under the age of 21

A grant of asylum in the U.S. does not expire. However, USCIS may terminate your asylum status if you:

  • No longer have a well-founded fear of persecution because of a fundamental change in circumstances
  • Obtained protection from another country
  • Obtained the original asylum grant through fraud
  • Committed certain crimes or engaged in other activities that make you ineligible to retain asylum in the United States

Referral to Immigration Court

If USCIS is unable to approve your asylum application and you are in the United States illegally, they will forward (or refer) your asylum case to the Immigration Court.

A referral to the immigration judge includes your spouse and unmarried children under 21 if they:

  1. Were included on your asylum application
  2. Are in the United States illegally.

A referral is not a denial of your asylum application. Instead, your case is referred for further review by the Immigration Court. The Immigration Judge will evaluate your asylum claim independently and is not required to rely on or follow the decision made by USCIS.

Recommended Approval

USCIS will issue a recommended approval when you are eligible for asylum but they have not received the results of required security checks.

A recommended approval includes your spouse and children, provided that:

  1. They are present in the United States
  2. They were included on your application
  3. You established a qualifying relationship to them

When a recommended approval has been issued due to pending security checks, you and your family members may apply for permission to work in the United States by filing a Form I-765, Application for Employment Authorization.  When they receive the results of the required security checks and you are cleared, the recommended approval will be changed to a grant of asylum.

Notice of Intent to Deny

You may receive a notice of intent to deny (NOID) if you have valid legal status in the United States but are found ineligible for asylum. The NOID will state the reason(s) that you are ineligible for asylum. You will have 16 days to explain in writing either why the claim should be granted or submit new evidence to support the claim, or both. If you do not to respond within 16 days, your asylum claim may be denied. If you respond, the asylum officer will carefully consider the response or new evidence, or both and then make a final decision to approve or deny the claim. If the claim is approved, the officer will issue a grant of asylum; if the claim is denied, the officer will issue a final denial.

Final Denial

You will receive a notice of intent to deny (NOID) and a final denial letter if:

  1. You do not respond to the NOID within 16 days, or
  2. You submitted a response but the new information failed to overcome the reasons for denial stated in the NOID

You cannot appeal the asylum officer’s decision. The denial includes any dependents included on your asylum application. If your claim is denied, you may reapply for asylum however, you must show changed circumstances that affect your eligibility for asylum.

I-589 Application For Asylum

Every year people come to the United States seeking protection because they have suffered persecution or fear that they will suffer persecution due to:

  1. Race
  2. Religion
  3. Nationality
  4. Membership in a particular social group
  5. Political opinion

You may include your spouse and children who are in the United States on your application at the time you file or at any time until a final decision is made on your case. To include your child on your application, the child must be under 21 and unmarried.

Bringing Your Family to the United States

If you are granted asylum you may petition to bring your spouse and children to the United States by filing a Form I-730, Refugee/Asylee Relative Petition. To include your child on your application, the child must be under 21 and unmarried.

You must file the petition within two years of being granted asylum unless there are humanitarian reasons to excuse this deadline. There is no fee to file this petition.

Filing for Permanent Residence (Green Card)

You may apply for a green card one year after being granted asylum. To apply for a green card, file a Form I-485, Application to Register Permanent Residence or to Adjust Status. You must submit a separate I-485 application packet for yourself and, if applicable, for each family member who received derivative asylum based on your case.

Asylum Attorneys In Tampa, Florida

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United States (US)

Phone: 813-226-2144
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Tampa Asylum Lawyers

The Tampa asylum lawyers at Neil F. Lewis, P.A. have helped thousands of clients achieve the American Dream. Our immigration attorneys specialize in DACA, deportation defense, citizenship, appeals, asylum, green cards, and visas. 

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