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Individuals and their dependents may only apply for asylum if they are currently in the United States, and have been here for less than one year. United States Citizen and Immigration Services (USCIS) considers a number of factors when reviewing an asylum case, including whether or not the applicant has a well-founded fear of prosecution if he or she returns to their home country. “Well-founded fear” must be based on one or more of the following protected grounds:
- Particular Social Group (or “PSG”)
- Political opinion
A PSG is generally understood as an identifiable group of people viewed as a threat by its country of origin. It is also often described as a group sharing a common characteristic that is so fundamental to their individual identities that the members cannot, or should not be expected to change it.
QUALIFYING FOR ASYLUM
You must first obtain refugee status to be considered for asylum. You may qualify for asylum if you can establish that you are a refugee, and if you do not satisfy any of the below bars to asylum:
- Persecution of others
- Conviction of certain types of crimes in the United States
- Commission of serious, non-political crimes outside of the United States
- Being a danger to national security
- Terrorist activity
- Firmly resettling in another country outside of your home country
- Having a safe third country where you could live
- Prior asylum denial (except in changed circumstances), and
- Filing for asylum more than one year after arriving in the U.S. (with limited exceptions)
The UN defines a refugee as someone who has been forced to flee his or her country because he or she has suffered harm and/or has a well-founded fear of future harm because of who they are. This may include harm that is based upon one’s race, religion, nationality, political opinion, or some other characteristic about oneself that cannot be changed, such as one’s sexuality.
Asylum seekers have much higher rates of success when they are represented by an attorney. A well thought-out case can make the difference in a successful asylum case, and an experienced immigration attorney can help increase your chances of receiving a favorable ruling.
AFFIRMATIVE AND DEFENSIVE ASYLUM APPLICATIONS
There are two types of asylum applications in the United States: affirmative and defensive.
Defensive cases: an asylum seeker is placed in removal proceedings before an Immigration Judge with the Executive Office for Immigration Review. They may apply for asylum at their removal hearing in front of an Immigration Judge. An asylum seeker in removal proceedings may have been referred to Immigration Court either upon applying for admission at a U.S. port of entry or at some time after the individual has entered the country.
Affirmative cases: an asylum seeker is inside the United States and has not been placed in removal proceedings. He or she may then file an application with U.S. Citizenship and Immigration Services, regardless of his or her legal status in the United States. If the asylum seeker does not have a valid immigration status, and USCIS does not grant the asylum application, USCIS will place the applicant in removal proceedings and an Immigration Judge will reconsider the application. The Immigration Judge may also consider the applicant for relief that the asylum office has no jurisdiction to grant.
FAMILY STATUS WHILE SEEKING ASYLUM
Asylum seekers may not bring family members to the US until they have already received asylum. You may only petition to bring children and/or your spouse to the United States after receiving asylum.
Our immigration attorneys know how to navigate the asylum process and are standing by to help you better understand your legal rights. If you think you may qualify, or have further questions, call the Federal Practice Group for a consultation today.