Asylum-Based Permanent Residency
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Every year, thousands of people come to the United States in need of protection because they have been persecuted or fear they will be persecuted due to their race, religion, nationality, membership in a particular social group, or political opinion. Those found eligible for asylum are permitted to remain in the United States.

Unlike the U.S. Refugee Program, which provides protection to refugees by bringing them to the United States for resettlement, the U.S. Asylum Program provides protection to qualified refugees who are already in the United States or are seeking entry into the United States at a port of entry. Asylum-seekers may apply for asylum in the United States regardless of their countries of origin. There are no quotas on the number of individuals who may be granted asylum each year (with the exception of individuals whose claims are based solely on persecution for resistance to coercive population control measures).

Eligibility


U.S. "Affirmative" Asylum Processing with USCIS:

In the Affirmative Asylum process, individuals who are physically present in the United States, regardless of how they got here and regardless of their current immigration status, may apply for asylum. They do so "affirmatively" by submitting an application to USCIS. In keeping with the idea that a genuine asylum-seeker should present himself/herself to authorities "without delay," asylum-seekers must apply for asylum within one year from the date of last arrival in the United States, unless they can show changed circumstances that materially affect their eligibility or extraordinary circumstances relating to the delay in filing, and demonstrate that they filed within a reasonable amount of time given those circumstances.

It is important to note that affirmative asylum applicants are almost never detained. Applicants are free to live in the U.S. pending the completion of their asylum processing with USCIS and, if found ineligible by USCIS, until final detrmination by an Immigration Judge (see U.S. "Defensive" Asylum Processing with EOIR).

This processing is usually completed within 6 months of the initial application, including processing by the Immigration Judge if required. If USCIS can approve the application, the decision is usually issued within 60 days from the initial application. During this time, most asylum applicants are not authorized to work.

U.S. "Defensive" Asylum Processing with EOIR:

Immigration Judges with the Executive Office for Immigration Review (EOIR) hear asylum applications only in the context of "defensive" asylum proceedings. That is, applicants request asylum as a defense against removal from the United States. Immigration Judges (IJs) hear such cases in adversarial (court-room-like) proceedings: the IJ is the judge that hears the applicant's claim and also hears any concerns about the validity of the claim raised by the government, which is represented by an attorney. The IJ then makes a determination of eligibility. If the applicant is not found eligible for asylum, the IJ determines whether the applicant is eligible for any other forms of relief from removal and, if not, will order the individual removed from the United States.

Ineligibility to Apply for Asylum


An asylum-seeker is ineligible to apply for asylum if he or she:

  1. Failed to file an asylum application within one year of his or her last arrival in the United States or April 1, 1997, whichever is later.

    Exception to the 1-Year Filing Deadline:

      The applicant demonstrates either the existence of changed circumstances* which materially affect the applicant's eligibility for asylum or extraordinary circumstances** relating to the delay in filing. The applicant needs to have filed the application within a reasonable time given the exception.

  2. Previously applied for asylum and was denied by an Immigration Judge or the Board of Immigration Appeals

    Exception to Previous Denials of Asylum:

      The applicant establishes the existence of changed circumstances* which materially affect his or her eligibility for asylum.

  3. Can be removed to a safe third country pursuant to a bilateral or multilateral agreement
    Pursuant to a bilateral agreement between the United States and Canada, unless asylum-seekers arriving at a U.S./Canada land border port of entry or transiting through the United States while being removed from Canada fall within an exception to the agreement, they will be returned to Canada to seek protection there.


Expedited Removal


Most undocumented migrants stopped by immigration officials at a U.S. port-of-entry (POE) may be subject to expedited removal. This means that, for persons other than genuine asylum seekers, refusal of admission and/or removal from the United States can be effected quickly.

However, some of the individuals arriving at an Immigration POE without proper documentation are genuine asylum-seekers fleeing persecution in their home country. Because of the circumstances of their flight from their homes and departure from their countries, they may arrive in the U.S. with no documents or with fraudulent documents obtained as the only way out of their country.

Any person subject to expedited removal who raises a claim for asylum - or expresses fear of removal - will be given the opportunity to explain his or her fears to an Asylum Officer. Recognizing that some refugees may be hesitant to come forward with a request for protection at the time of arrival, immigration policy and procedures require Inspectors to ask each individual who may be subject to expedited removal the following series of "protection questions" to identify anyone who is afraid of return:

  • Why did you leave your home country or country of last residence?
  • Do you have any fear or concern about being returned to your home country or being removed from the United States?
  • Would you be harmed if you were returned to your home country or country of last residence?
  • Do you have any questions or is there anything else you would like to add?

If the individual expresses a fear of return, the individual is detained and given an interview by an Asylum Officer. The role of the Asylum Officer is as an Asylum Pre-Screening Officer (APSO) who interviews the person to determine if he or she has a credible fear of persecution or torture. This is a standard that is broader and the burden of proof easier to meet than the well-founded fear of persecution standard needed to obtain asylum. Those found to have a "credible fear" are referred to an Immigration Judge to hear their asylum claims. This places the asylum seeker on the "defensive" path to asylum. Most individuals who are found to have a credible fear are almost immediately released to relatives or community groups, or on their own recognizance. However, some are not released, and instead are detained while their asylum claims are pending with the Immigration Judge.

If the individual who expresses a fear of return is arriving from Canada at a U.S.-Canadian land border port of entry, or is being removed from Canada and transiting through the United States, the APSO will conduct a threshold screening interview to determine whether he or she must seek protection in Canada instead of the United States. If the individual is eligible to seek protection in the United States, the APSO then will determine whether he or she has a credible fear of persecution or torture.


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