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Asylum in the United States

Asylum can be one of several defenses to removal, or asylum can be a separate application.  Thus, a refugee who is already present in the United States has two ways to apply for asylum here.  The choice depends on whether or not the applicant is already in proceedings at an immigration court.  The two ways to apply for asylum are:

  1. Defensive Asylum Application in Immigration Court.  If you are in proceedings before an immigration court, you may be eligible to file your application with the court.
  2. Affirmative Asylum Application with USCIS.  If you are not in proceedings before an immigration court, you can file your application with USCIS.  USCIS may grant asylum, or refer the application to an immigration court.

Both methods are discussed in more detail below.  But some important things to consider first are that: (1) there is no filing or processing fee payable to USCIS or the immigration court for an asylum application; and (2) if the adjudicator concludes that you have met all of the legal requirements for asylum, you will obtain asylum here even if you are not lawfully present in the United States.  Also, if the adjudicator denies your application for asylum, then: (3) if you are present in a lawful nonimmigrant status, such status usually continues; but (4) if you are not lawfully present, USCIS may ask an immigration court to remove you from the United States unless the court decides to grant asylum.

Affirmative asylum application with USCIS.  During the initial consultation, Mr. Basu will review your background against the legal requirements for asylum.  As your attorney, Mr. Basu will:

  • help you prepare your I-589 asylum application;
  • identify supporting materials;
  • write a legal memo to support your application; and
  • appear with you for your interview at the USCIS Asylum Office (the "AO").

Mr. Basu will focus on a comprehensive presentation of your circumstances to the AO.  After the AO receives your completed application, they will ask you to go to a designated Application Support Center with your photo ID (e.g., passport).  This is your fingerprinting appointment (also called biometrics appointment).  The fingerprinting must be completed before you can appear for the interview at the AO.  If you are late for your biometrics appointment, your interview may be delayed.

The AO adjudicates your application.  After your interview, the AO will do one of two things: (1) they may approve your application, or (2) refer your case to an immigration court.  The AO usually acts promptly.  If the AO approves your application, you immediately receive employment authorization, and you can apply for a unrestricted social security card.  After one year of physical presence in the United States from the date of your asylum grant, you may apply for a green card (i.e., status as Legal Permanent Resident, or LPR) using form I-485 with supporting documents.  A prompt application for LPR status is usually beneficial.

You can be granted asylum even if you are not lawfully present in the United States.  But if the AO refers your case to an immigration court, an immigration judge will decide your asylum case.  If you are not lawfully present, the USCIS can ask the immigration court to remove you from the United States if the court does not grant asylum.  You can then raise any defenses to removal that are available in your case.  The court will rule on other available relief, such as withholding of removal or relief under the Convention Against Torture, but generally only if you applied for such consideration on your I-589.  Mr. Basu can represent you in these proceedings before an immigration judge.

If more than 150 days pass with no decision on your case by the AO or an immigration court, you may be eligible to apply for employment authorization if you did not cause or request the delay.  Count the 150 days starting from the day USCIS received your completed asylum application.

Defensive application at immigration court.  If you have not yet filed an asylum application with USCIS, and are in proceedings before an immigration court, you may be eligible to file an application for asylum directly with the court.  Mr. Basu can represent you in proceedings before an immigration judge.

Spouses and children of applicants.  You may include your spouse and/or unmarried children under 21 years of age who are in the United States on your I-589 asylum application.  You and your included dependents obtain employment authorization with your grant of asylum.  After one year of physical presence in the United States from the date of your asylum grant, all may apply for LPR status (i.e., the green card).

If your dependents are outside the United States, or if you did not include them in your I-589 application, you may petition later via form I-730 to bring your spouse and/or unmarried children under 21 years of age to the United States.  However, you must file the I-730 within two years of the date you were granted asylum, unless there are "humanitarian reasons" for extending the two-year period.

Note on travel outside the United States.  You will receive a new form I-94 "Arrival-Departure Record" with the grant of asylum.  The I-94 will show that you have been granted asylum status in the United States, and it will also show the date of the grant.  However, even after you obtain asylum status, you must apply for a "refugee travel document" using form I-131 before you leave the country.  The same is true for each of your dependents who obtained derivative asylum status via your I-589 or I-730 petition(s).  Without a refugee travel document, you or your dependent may be denied readmission to the United States, or be placed in deportation (removal) proceedings after readmission.

Additional benefits for asylees.  When you are granted asylum, the AO will provide you with more information on available cash and medical assistance, job placement assistance, career counseling, and occupational skills training.  Such assistance is usually available for a limited period of time after you obtain asylum status.

Humanitarian & Other Visas / Status

Related to asylum are several non-immigrant status (visa) categories available on humanitarian and other grounds, usually to those present in the United States.  It is usually possible to adjust to LPR (legal permanent resident, or "green card") status, but only SIJs are eligible to apply for adjustment immediately.  The following table shows some of these categories; however, please note that not all the eligibility requirements and benefits for any category are shown in this brief overview:

Status For victim of:
T Human trafficking (sex / labor): Severely exploited in a form of slavery; present in the U.S. on account of the exploitation; faces extreme hardship if removed from the U.S.; may be required to assist law enforcement in investigation or prosecution; and etc.
U A crime that appears on a list of crimes associated with the U-visa: Suffered substantial harm due to that crime; crime committed in the U.S. or violated U.S. law; victim has information about the crime; requires law enforcement certification of helpfulness in investigation or prosecution; and etc.
VAWA Domestic violence: Current or former spouse of USC or LPR abuser (good-faith marriage), child of USC or LPR abuser, or parent of USC abuser; victim suffered battery or extreme cruelty; resided with abuser; has good moral character; and etc.
SIJ Child abuse, abandonment, and neglect; under 21 years of age; unmarried; in state juvenile court system and/or federal custody; state juvenile court dependency order (finding child cannot be reunited with either parent due to abuse, abandonment, neglect, or similar reason; not in child's best interest to be removed from the U.S.; etc.); and etc.

Deportation (Removal) Proceedings

Department of Homeland Security.  There are good reasons why you should call for a consultation as soon as you learn that ICE, CBP, or USCIS wants to remove you or a family member from the United States.  If removed from the United States, you may be ineligible to return for several years, or even permanently.  If you are held at an ICE detention facility, you may be eligible for an immigration bond hearing in immigration court.  If CBP is proceeding against you at an airport or land border crossing, it may be a matter of hours before you are removed.

Usually, ICE or USCIS serves the individual charged with a Notice to Appear at the same time that it brings the matter to an immigration court.  But notice can be verbal, such as from a CBP inspector who denies entry into the United States at an airport or land border crossing.  And if CBP has put you in expedited removal proceedings, there is generally no right to appear in immigration court, although Mr. Basu can represent you at CBP.

Immigration Court.  ICE, CBP, and USCIS are agencies within the Department of Homeland Security (DHS).  Mr. Basu can represent you at these agencies, or in immigration court.  Immigration courts are outside of the DHS and are part of the Department of Justice (DOJ).  The courts offer an impartial judge who can rule for you and against the DHS in the dispute.  While in law school, Mr. Basu interned at an immigration court to observe removal hearings, discuss cases with immigration judges, and draft opinions for them.  He earned a Certificate of Appreciation from the court for his efforts.  As your attorney, he will look for your available defenses or other relief, and mount a vigorous defense to the DHS case.

Appeals of Decisions

Mr. Basu can represent you in immigration-related appeals at administrative appeals boards or offices, at the Board of Immigration Appeals, or in federal courts.  Please note that the law limits appeal of an adverse decision made by a consular officer at an embassy or consulate abroad.

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