Asylum Lawyer
Every year, thousands of people that are already in the United States or who are waiting at the U.S. border apply for asylum. Asylum status is intended for individuals fleeing persecution or in fear of persecution in their home country because of their race, religion, nationality, or social or political affiliation.
Keep reading to learn more about the criteria for asylum, the application process, and the benefits of immigration law services for asylum-seekers.
Book a virtual consultation with Martinez Immigration today to avoid frustration and improve your chances for asylum.
What Is Asylum?
Asylum is a state-defined form of protection from persecution that allows foreign nationals to live inside of the United States instead of being removed (deported) to a country where they may be in danger. A person granted asylum (also known as an asylee) is protected from returning to their home country and is authorized to work in the United States.
Additionally, they may apply for a social security card, request permission to travel overseas, and can even petition to bring family members to the United States. After a year in the United States, an asylee may apply for their green card and eventually, citizenship.
Refugee vs. Asylum Seeker: How Are They Different?
Although the terms refugee and asylum seeker are sometimes used interchangeably, there are some key differences between them. It is helpful to learn which status applies to your situation, so you can make informed decisions for you and your family.
The U.S. Immigration and Nationality Act defines a refugee as, “any person who is outside any country of such person’s nationality… who is unable or unwilling to return to 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…”
However, this definition applies to both refugees and asylum seekers. The main difference between the two is refugees receive refugee status while outside the U.S.—while asylees receive asylum within the U.S. or at a port of entry.
The difference in status also helps determine when and in what order the U.S. Refugee Admissions Program (USRAP) processes their applications. Cases referred by the United Nations have top priority, followed by those of special humanitarian concern, and then family reunification cases.
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Who Is Eligible for Asylum?
The asylum system in the United States offers protection to foreign nationals who arrive at the U.S. border or who are already living in the country.
To apply for asylum, you must be located outside of the U.S. seeking admission at a port of entry or already be present in the U.S. You must show there is a reasonable, well-founded fear of persecution in your home country.
What Is Persecution?
In the context of immigration law, the term “persecution” is not clearly defined. It’s assessed on a case by case basis. It can be religious intolerance, political violence, or other types of harm or threats of harm to you, your family, or those similar to you.
Asylum-seekers may be in fear of:
- Mental and physical torture
- Genocide and other human rights violations
- Emotional, mental, or psychological harm
- Economic harm, confiscating one’s business or property
- Depriving a person of food, housing, employment, or education
- Unlawful detention, often for political or religious discrimination
- Physical violence, including assault, beating, forced labor, and sexual abuse
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When Is Fear Well-Founded?
A well-founded fear of persecution is genuine and reasonable fear based on objective circumstances taking place in the applicant’s country of origin.
For example, if members of a certain political group are being jailed or physically attacked, fear of persecution is well-founded for someone known to belong to that group.
Even if an applicant seeks more economic opportunities and personal freedom in the U.S, fear must be the primary motivating factor when seeking asylum. To make this call, immigration courts evaluate the applicant’s demeanor, candor, and credibility.
The Asylum Application Process
There are three primary ways asylum-seekers can apply for protected status in the United States: the affirmative process, the defensive process, and the expedited process.
Affirmative Asylum
Affirmative Asylum occurs when someone preemptively applies for asylum through USCIS, while physically present in the United States. You must do so within one year from the date of your last arrival to the U.S. (unless you can show extenuating circumstances delayed the process.)
To apply for affirmative asylum, submit Form I-589, Application for Asylum and for Withholding of Removal and remain in the country while it’s being processed. If the USCIS officer managing their case does not grant their asylum application and the person applying does not have a lawful resident status, it is likely that they will be referred to the immigration court for removal proceedings. They may then renew their application through the defensive asylum process described below.
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Defensive Asylum
Defensive occurs when someone who is in removal proceedings files for asylum directly with an immigration judge at the Executive Office for Immigration Review (EOIR) in the Department of Justice. This is done in an attempt to avoid deportation.
It is important to note that the EOIR does not provide counsel for individuals in immigration court. Asylum-seekers in need of proper representation should seek an attorney.
There are a few reasons someone is placed in defensive asylum processing:
- United States Citizenship and Immigrations Services (USCIS) refers them to an immigration judge after being classified as ineligible after the affirmative asylum process.
- They are apprehended in the U.S. or at a port of entry without proper legal documents or in violation of their immigration status.
- They are apprehended trying to enter the U.S. and asylum officer finds they have a credible fear of persecution or torture in their country of origin.
Defensive asylum cases are heard in court-like proceedings with you, your immigration lawyer, and an attorney from U.S. Immigration and Customs Enforcement (ICE.) If the immigration judge finds you eligible, asylum is granted. If not, they will either recommend other options for relief or order your deportation. Both parties can appeal this decision.
Expedited Asylum
Expedited asylum occurs when someone who is placed in “expedited removal proceedings” files directly with USCIS to apply for asylum. It’s available to applicants experiencing emergencies and urgent humanitarian circumstances, and essentially gives their application top priority.
Death in the family, dire medical needs, or extreme living conditions may be valid reasons for an expedited request.
If an individual is denied asylum during the Expedited Asylum process, they are referred to immigration court for removal proceedings. Unfortunately, USCIS approves these requests in very limited circumstances. An attorney will help build the strongest argument possible to expedite your application.
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How Your Immigration Lawyer Will Help You With the Asylum Process
Yes, the application process can be frustrating and time-consuming, but there is so much at stake. Mistakes or delays at any point can negatively impact your chance of obtaining protection. From your initial application to your interview and court proceedings, we are here to guide you every step of the way.
We assess your eligibility, complete and submit your application, and ensure you meet key deadlines. Your lawyer prepares you for hearings and other proceedings, so you are ready and prepared for each stage of the asylum process.
If your application is denied, we explore other avenues to obtain relief from removal.
Asylum lawyer Kathleen Martinez with Martinez Immigration is committed to protecting you and your loved ones and reuniting your family. Call or connect online to book a virtual consultation with Martinez Immigration today.
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