Asylum in the United States

The United States allows people to apply for asylum if they escape harm or persecution in their home country. Asylum protects individuals in danger because of their nationality, religion, race, political beliefs, or membership in a specific social group. The U.S. asylum system provides hope for vulnerable people fleeing unimaginable situations.

Seeking asylum in America can be a challenging and stressful experience. When asylum seekers arrive, they must undergo complicated legal processes, interviews, and proof that their stories are true. The decision could mean life or death, as being denied asylum may result in being sent back to the dangerous situation they fled from.

While immigration is often hotly debated, the reality of asylum is one of complete desperation. Imagine having to flee your home country because of violence and threats to your life, leaving behind everything familiar just to find basic safety. For many people globally, this nightmare is unavoidable, forcing them to seek refuge in countries like the U.S. that protect asylum rights.

The U.S. approach to asylum upholds moral and legal duties to protect persecuted people while ensuring national security. It's a complex issue that crosses political lines, requiring careful thought about human suffering, global realities, and practical limits. Yet, at its core, asylum upholds America's commitment to human rights.

From the dangerous journeys asylum seekers take to the complicated legal battles ahead, seeking asylum in the U.S. tests human resilience and courage. It's an experience of profound hardship and uncertainty. As a nation of immigrants and refugees, how America handles asylum cases reflects its historical identity of welcoming those yearning for freedom.

Eligibility Criteria for Asylum

To qualify for asylum, applicants must meet some basic rules.

First, they must be physically present in the United States whether they arrived legally or not. That includes ports of entry like airports. You can't apply from outside the country.

Next, the applicant must have a credible fear of harm if returned home. This harm is called "persecution," which means severe injury or threats. The threat must come from the government or groups it cannot control. Common fears are due to race, religion, nationality, political views, or social groups.

Proving the fear is also essential. The applicant needs evidence that it's "well-founded" or likely to happen based on their situation. Having faced past harm from the government helps prove this. Simply not liking conditions at home is usually not enough. Some people cannot get asylum even if they meet the criteria. For example, if they persecuted others, committed serious crimes, or threatened U.S. security.

The government also has the right to reject an application through its power of discretion.

After completing the application process, asylees can apply for a Green Card after one year of protection in the U.S. This allows permanent legal residency. Four years later, asylees can apply for U.S. citizenship if they continue living here. Following the eligibility criteria and process gives protection under the law.

Filing an Affirmative Asylum Application

There are two ways to apply for asylum in the United States - affirmatively or defensively.

The affirmative process is for those not currently in immigration removal proceedings. To file an affirmative asylum application, you must submit Form I-589 to U.S. Citizenship and Immigration Services (USCIS).

Filing an affirmative asylum application within one year of arriving in the United States is essential. There is no fee to apply for asylum affirmatively. It can include a spouse and any unmarried children under 21 years old on the application.

There is an option for affirmative applications to file Form I-589 online in some instances. However, one cannot e-file if one is already in immigration court proceedings, is an unaccompanied minor, or has special filing instructions requiring one to apply by mail.

After filing affirmatively, USCIS will schedule an interview with an asylum officer. You'll be asked for details about why you are applying for asylum and any persecution you face. The officer will determine if you have a credible case that qualifies for asylum approval or denial.

If the asylum officer denies your affirmative asylum case, you'll be referred to immigration court. That allows an immigration judge to review asylum cases separately through the defensive process. Having legal representation can significantly assist with properly filing affirmative applications and preparing for interviews.

Defensive Asylum Applications in Removal Proceedings

There is a defensive process for applying for asylum for those already in removal proceedings before an immigration court. That process comes into play if immigration authorities apprehend someone after they enter the United States without proper documentation or overstay their visa.

In these situations, the Department of Homeland Security has moved to remove from the country through immigration court. However, one can then submit Form I-589, the Application for Asylum and Withholding of Removal, as a defense against deportation. By doing so, they are asking the immigration judge to grant you asylum status and allow you to remain in the United States legally.

The defensive asylum process begins by first seeing an asylum officer at USCIS for a credible fear interview. In this interview, you must establish that you have a credible fear of persecution or torture if returned to your home country based on nationality, race, political opinion, religion, or membership in a particular social group.

If the asylum officer finds fear credible, the defensive asylum case will go before an immigration judge in a court hearing. If not, it may still be reviewed by an immigration judge upon request.

At individual hearings in immigration court, you will plead your asylum case directly to the judge. You must provide detailed testimony about the past persecution you experienced or credible fear you have of future persecution upon return.

Bringing forward evidence and documentation to support testimony is extremely important. The judge will then apply U.S. immigration laws and international agreements to determine if you meet the legal definition of a refugee eligible for asylum.

Having an experienced immigration lawyer represent you is highly advisable. If the immigration judge assigned to your case denies your asylum application, you can appeal that decision to the BIA or Board of Immigration Appeals, a higher administrative body. The BIA conducts a paper review of your case record. If it still rules against you at this level, you can make one final appeal to the federal circuit courts.

However, the circuit courts are optional to hear your case appeal. When your asylum claim is denied through appeals, you become subject to a removal order and potential deportation from the U.S.

The defensive asylum process through immigration court proceedings can take years due to severe backlogs and delays in the system. During this time, asylum seekers are generally only authorized to work if their case has been pending for over a year without being Resolved.

That leaves many under challenging circumstances, struggling to support themselves and their families for extended periods as their cases slowly progress through legal channels. Those denied asylum may potentially qualify for other protections against removal, like withholding of removal or protection under torture conventions as a last resort.

The Form I-589: Application for Asylum

Anyone seeking asylum in the United States must file Form I-589, the Application for Asylum and Withholding of Removal, affirmatively or defensively. This form initiates the asylum process. It requires providing biographical information about yourself and your family, details about why you are applying for asylum, and the persecution or fear of persecution you have faced.

Form I-589 has 14 sections that must be completed. It asks for personal identifying details like name, date of birth, country of origin, and location. You must explain how you entered the United States, legally or illegally.

The most critical part is Section B, where you must articulate why you seek asylum by describing any past persecution or well-founded fears of future persecution.

When filling out this section, you must indicate if the persecution relates to your race, nationality, political opinions, religion, or membership in a particular social group. Providing a detailed account with specific incidents, dates, locations, and perpetrators is crucial, as it establishes credibility.

You must also submit evidence corroborating the persecution you describe, such as official documents, news reports, photographs, or witness statements.

Section C of the form asks about your travel and movements, while later sections require information about your family, prior residences, education, employment, and organizational memberships.

Form I-589 aims to provide a comprehensive picture of your background and the circumstances surrounding your asylum claim. Omitting any key details could damage your case.

For affirmative asylum applications, the completed Form I-589 must be submitted to USCIS within one year of arrival to the United States unless you meet the qualification for an exception to the one-year filing deadline.

For defensive asylum cases through immigration court, you'll file the I-589 with the court at your hearing. While a lengthy document, filing Form I-589 thoroughly and accurately from the start is crucial for your asylum case to proceed appropriately.

History of U.S. Refugee and Asylum Laws

The United States has a long history of passing laws to help refugees and asylum seekers. In the past, many people came to America to escape problems in their home countries.

The first primary law was passed after World War 2 in the 1940s. Many people from Europe needed a safe place to live after the war caused so much damage and destruction.

In the 1960s and 1970s, more laws were made. That was because the Vietnam War caused many people to flee Vietnam. Many Vietnamese people came to America on boats. They were called "boat people". The U.S. president at the time increased the number of Southeast Asian refugees who could come each month.

That helped a large number of people escape war and poverty. In 1980, a fundamental law called the Refugee Act was passed. This law defines a refugee according to international rules and established offices to help refugees start new lives in America. In the past, different government offices handled refugees in separate ways. This law made the system more organized and consistent.

In the 1990s and 2000s, more refugees came from Africa because of ongoing conflicts and wars on that continent. Many Europeans fleeing the wars in the Balkan countries of the 1990s also came as refugees. That changed the backgrounds of most refugees over time. Cities like New York, Los Angeles, San Francisco Bay Area, and Chicago became familiar places where refugees settled.

Specific communities were formed based on nationality, such as Russian refugees in New York or Vietnamese refugees in California. Refugees have come from all over the world, fleeing many different problems. The U.S. continues improving and updating its refugee laws.

However, the number of refugees allowed yearly fluctuates due to changing priorities between administrations. Some years saw nearly 85,000 refugees, while other years dropped under 20,000 refugees. The current administration aims to increase the number again steadily.

Inconsistencies and Disparities in Decision-Making

There needs to be more consistency in how asylum cases are decided. A 2007 study found that the outcome of a case depended more on which individual immigration officer or judge looked at the application than on the actual merits of the case. The person reviewing it mattered more than the facts of what happened to the asylum seeker.

Another 2008 study looked at decisions between 1994 and 2007. It found vast differences in the likelihood of people being granted asylum depending on which court their case was heard in. Some places approved more applications than others, even when similar stories were.

That shows that the system does not treat all refugees equally based on their situation. Some differences can be due to how recently an officer or judge has had training. But there are also personal opinions involved. More conservative reviewers tend to deny more cases than liberal ones. That means the political views of a single person can negatively impact someone's entire future.

Changes were made after 2008 to reduce disparities, but some remain. Not all courts and officers interpret laws and procedures the same way. Without clear rules, this leaves room for bias and inconsistent judgments. Critics say the process can feel like a "game of chance" or "refugee roulette."

Asylum seekers cannot know their odds based on one person's perspective. The system should treat every case equally based on factual evidence, not subjective views. More precise guidelines could improve fairness and restore integrity.

Mental Health Impacts of the Application Process

Seeking asylum is stressful due to escaping danger and an uncertain future. However, the application process itself can negatively affect mental health even more. Asylum seekers have to retell their traumatic stories over and over during interviews. That often forces them to relive harrowing memories.

Constant fear and stress are hard on the brain and body. Many asylum applicants already have conditions like PTSD from their past experiences. Going through extended interviews and court cases increases anxiety and depression symptoms.

It's a complex process, even for people without existing trauma or mental health issues. Language barriers and significant cultural differences can lead to misunderstandings, too. Applicants may not get explanations for legal terms in a way they understand.

This confusion adds to their unease. Very few receive help from social workers or therapists, though.

If applicants are detained while waiting, the situation will be much worse. Being held in prison-like facilities for months or years and facing an uncertain future takes a huge psychological toll. This policy has been shown to cause lasting harm.

Criticisms of the Current Asylum System

Many people say there are problems with the U.S. asylum system. One is that the rules are only sometimes fair. Some judges accept more cases than others, even when similar stories are. That means it depends on just one person. There should be more precise guidelines for all.

Another issue is detention centers. Keeping people locked up while waiting causes mental health problems. Studies show this can damage people in the long term. It's also expensive for taxpayers. Some experts think it's too harsh, and better options may exist.

The process itself may re-traumatize asylum seekers. Repeated interviews force people to relive bad memories, which increases anxiety and sadness. More support like therapists could help reduce this. The system needs to support people, not make problems worse due to no fault of their own.

Backlogs in the Asylum System

There are long waits to see judges or have cases decided. Some must wait over five years, which is a very long time to be unsure of your future. This backlog means people stay in limbo instead of moving forward with their lives.

Because of the backlog, over 600,000 cases are now waiting. With limited judges, more cases are added each year than can be closed. This logjam keeps swelling with no quick solution.

A large number of pending applications stresses an already overloaded system. It takes time for courts, lawyers, and staff to promptly handle such high volumes of work, contributing to inconsistencies and unequal treatment.

Wait times and access to legal representation

During their wait, asylum seekers cannot work legally and have difficulty accessing healthcare or welfare. That leaves many poor and struggling as years pass. Only some groups get permission to work after waiting around one year.

Good legal help can significantly increase the chances of success. However, representation is only provided in some hearings, not all of them. Finding affordable private lawyers is also a challenge for those who need means.

Most applicants try navigating complex laws alone, often needing more fluency in English or a deep understanding of the process. This imbalance of power and knowledge makes it very difficult to prove their case and be found credible. Representation helps even the scales.

WARNING: The foregoing is an article discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.

Resources / Helpful Links:

  • Asylum (USCIS)
  • How to seek asylum in the U.S. (
  • U.S. Refugee Admissions Program (U.S. Department of State)
  • I-589, Application for Asylum and for Withholding of Removal (USCIS)
  • Asilo en los Estados Unidos (K & G Law, LLP)
  • Benefits for Asylum seekers in the United States (K & G Law, LLP)
  • Questions about the Asylum?

    Request a consultation today

    Immigration lawyer for Asylum in the United States