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Lawful permanent residency (green card) in the U.S., the right to live and work in the U.S. and avoid persecution, is an option for a person who is afraid to go back to their home country pursuant to Political Asylum law in the U.S.  To qualify for political asylum, an applicant must usually apply within one year of entering the U.S. and must prove that s/he will face persecution if s/he returns to their home country on account of one of five protected grounds: their …

  • race

  • religion

  • nationality

  • membership in a particular social group (such as gender, sexual orientation, family status, and more), or

  • political opinion

The fear of persecution must be specific and based on past persecution or a reasonable, well founded fear of future persecution. If the applicant has established past persecution, the government then has the burden of showing that the situation in the applicant’s country has since changed where persecution is now unlikely or that it is safe to relocate in their home country, which would be reasonable. 

Asylum can be very difficult to win (be granted) and the burden is on the applicant to prove the likelihood of future persecution unless s/he is able to establish s/he has been persecuted in the past (which creates a presumption that s/he would be persecuted in the future). 

Affirmative vs. Defensive Asylum – Understanding the Process

Asylum can be either affirmative or defensive. An asylum application is an affirmative filing when the applicant is not in removal proceedings and is voluntarily applying for asylum status with USCIS. The process is generally less adversarial as ICE trial counsel is not involved in this process and the applicant interviews for their asylum claim in a less adversarial setting – the USCIS Asylum office, not removal court. In contrast, an asylum applicant files a defensive asylum claim when the applicant is in removal proceedings. It is a defensive application, filed in the hopes of avoiding removal or deportation from the U.S. In court, the process is more adversarial as the applicant is fighting their case in front of an Immigration Judge and ICE (Immigration and Customs Enforcement) is represented by a Trial Attorney whose job is to represent the government against the applicant and argue why the applicant does not qualify.   

Cases that are filed affirmatively can nevertheless end up as defensive cases if the applicant loses at the USCIS stage and has to renew their application for asylum in front of a judge if and when USCIS refers the case from the asylum office to the Immigration Court.  

Also, applicants who present themselves to US Customs and Border Protection (CBP) at the border who have no other papers or visa for entry may be able to file for asylum (*check with an attorney before doing this since the law has recently been in flux due to President Trump’s Asylum Ban 2.0 which is tied up in court challenges, is being implemented despite the challenges).  CBP conducts a credible fear interview to determine if the applicant could have a viable asylum claim. If the applicant passes the credible fear interview, the applicant is given the right to apply for asylum but may be detained by Immigration authorities until the court or ICE agrees to a bond, depending on how long the detainment lats. 

How long do Asylum  Cases Take?

Asylum cases in court can take years depending on the backlog of the court.  Keep this in mind when trying to document your case through the testimony of others; keep in touch with them and take measures to ensure your evidence still exists years down the road.   

Affirmative asylum cases filed with USCIS can also take years. However, most asylum cases filed after President Trump’s new policy went into effect, are prioritized to be interviewed first (so they are usually fast tracked to have interviews within a few months in many offices), and the older pending asylum cases are put on hold in some areas that areas that are so backlogged. This is based on the belief by the current administration that asylum cases can be easily fraudulent, just filed for work permits and this effort to ensure as much as possible that the interview happens before an applicant can apply for a work permit, will weed out the fraud. In reality, for strong cases, this creates a difficult burden of putting together a strong case in a short amount of time, not knowing when the interview will occur. 

If you are detained in court proceeding, you asylum cases can also happen very quickly so it’s vital to consult with a nonprofit that has volunteer attorneys or a private attorney if you can afford one since the turn around time on documentation and filing and your actual trial can all be wrapped up in 60 days or less in some courts, giving you very little time to put together a strong case and track down evidence, legal help, and cooperative witnesses.  

Can I Get  a Work Permit Through My Asylum Case?

If a case takes years, through no fault of the immigrant, the immigrant may be eligible in the meantime for a work permit (can apply usually after 6 months after an asylum application has been lodged with the court or filed with the asylum office). Even during the time a case is being appealed (if you lose in immigration court), a work permit may still be renewed as long as the BIA has not finalized the removal order by finding against the applicant in an appeal of an immigration judge’s ruling. 

Be careful when an attorney or notario tells you to file an asylum case just to get a work permit. Your asylum case must have merit (truth to what you are saying) or else you could be barred from any future immigrant visa or any relief in court if the immigration judge finds that you have made a “frivolous” asylum claim. This can ruin your life. 

Asylum law is very complicated and caselaw is constantly changing that limits the scope of certain types of asylum claims.  Be careful to not compare your case against others or believe everything you read on the internet. Always consult a licensed, competent, experienced asylum lawyer about your specific facts to determine if you have a strong case and what your options may be. 

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