Asylum can be an important tool for people seeking safety in the United States. The asylum process is designed to help people who fear persecution in their home country by providing them with an alternative to returning to their country of origin. The rules for asylum can change from administration to administration, and the new criteria may affect asylum eligibility for some people.

What Is Asylum?

Asylum is a process designed to help people seeking safe haven in the United States when returning to their country of origin may be dangerous. People with a legitimate fear of harm or persecution can request asylum in the United States as a way to avoid returning to a potentially dangerous situation. 

Asylum is different from refugee status, which is used to help people who have been displaced from their homes due to danger or armed conflict. The U.S. Government defines a refugee as someone outside his/her country of nationality who is unable or unwilling to return to his/her country of nationality 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. Refugee status is granted to individuals who are outside the U.S. and allows them to enter the country. It’s also different from Temporary Protected Status, which can be granted to people who have been displaced by a temporary situation, like the aftermath of a natural disaster or an armed conflict. 

Eligible applicants can submit their application for asylum to the U.S. Citizenship and Immigration Services (USCIS) for consideration. If they are in removal proceedings, they must file their Form I-589, Application for Asylum and for Withholding with the Immigration Court. They can request a work permit after the application has been pending for at least 150 days.

Unlike temporary protected status, asylum recipients are eligible to apply for lawful permanent resident status (a green card) one year after being granted asylum status if they abide by the law and continue to remain in good standing with immigration officials and law enforcement. 

Who Can Seek Asylum in the United States?

Asylum can only be sought by people who are already inside the United States or people who are at a U.S. port of entry, like a land border or airport. 

Asylees need to prove that they have a legitimate fear of persecution or have already faced persecution in their home country based upon one of the following grounds:

• Race.
• Religion.
• Political Opinion.
• Membership in a Particular Social Group.
• Nationality.

The term “persecution” has some exceptions. The United States recognizes a clear difference between religion and extremist groups with religious affiliations. If you fear criminal consequences in your country of origin for your affiliation with a religious extremist group (i.e., ISIS groups or Aryan affiliated groups), you cannot seek asylum in the United States.

You also cannot seek asylum in the United States if your political opinion would be considered extremist (i.e., forming a military junta against a sitting government). 

The term “membership in a particular social group” seems vague, but it is extremely important. This ground applies to innocent family members of people who have been punished by a government and who may receive undue punishment through affiliation. This ground also applies to members of the LGBTQ community. A tribe, educational institution, or occupational group could also be considered a particular social group.

Social group can be used as the reason for an asylum claim for people who are persecuted based on gender, gender identity, or sexual orientation. 

What Is a Well-Founded Fear of Persecution?

You must have a well-founded fear of persecution within your home country to seek asylum in the U.S. You can do this by showing you have been persecuted in the past or fear persecution in the future. If you’re within a minority group in your country, but there is no evidence of human rights violations or a pattern of harm against people within that minority group, you wouldn’t be able to seek asylum.

In order to establish a well-founded fear of persecution, you need to be able to establish a pattern of persecutory behavior or cite a new policy or law enacted in your country designed to harm or persecute others like you. 

How Are Asylum Laws Changing?

Immigration laws shift with the change of every political administration. The Trump Administration utilized Title 42, a controversial public health measure, to strictly limit immigration during the COVID-19 pandemic. The pandemic-related restrictions finally came to an end under the Biden Administration, before which the Administration worked to put new immigration laws in place.

Many of these laws sought to change the current asylum immigration system by impacting the way that migrants were allowed to approach the process of seeking asylum in the United States. There are new criteria in place that immigration reform advocates find to be too restrictive, but the Administration claims that the new rules are in place to streamline the system and make it safer for people to seek asylum at the border. 

Not all of Biden’s asylum rules passed judicial scrutiny. A proposed rule that would make it illegal for people who crossed the border without proper authorization to seek asylum in the United States was blocked by a federal judge. Judge Jon Tigar found the rule to be “contrary to law” and did not allow the administration to proceed with that specific portion of policy change. The decision has been appealed, and at this time, the rules can be enforced. 

What Are the New Asylum Criteria?

The process of seeking asylum in the United States has significantly changed over the years. As immigration institutions move towards automation and digital recordkeeping, they’ve implemented new policies designed to streamline the process and prevent people from crowding the border with asylum claims. 

Some Asylees Must Prove They Sought Asylum Elsewhere and Were Denied

The “Circumvention of Lawful Pathways” policy requires that all people seeking asylum in the United States must seek asylum in every country they pass through on the way to the United States. 

There are some circumstances where this may not apply, such as those where an asylum seeker never passes through a third country. For example, citizens of Mexico won’t need to pass through another country on their way to the United States, which means there is nowhere else they must seek asylum. 

Anyone who passes through at least one country that is not their country of origin must first seek asylum in that country. They’re required to provide proof that they sought asylum and that their claim was denied before they’re eligible to formally request asylum in the United States.

Asylees Must Request an Appointment Through an App 

U.S. Customs and Border Protection (CBP) doesn’t want asylum seekers to present themselves at the border. They want asylum seekers to use the CBP One smartphone app to submit their documentation and request an appointment with an asylum officer at the border. This documentation is not the same as an official asylum application. It’s the step you take before you’re considered for asylum eligibility.

A limited number of appointment spots are made available. Hopeful applicants must wait until the moment new appointment spots are available on the app and hope to get one on time. Border officers will review the information presented and contact certain applicants for a potential border interview spot and eligibility screening.

Getting an interview appointment doesn’t mean that you’ll be granted asylum in America. It only means that your case will be considered at the border. Your request may be denied if you don’t meet all of the criteria to qualify for asylum or if you cannot provide proper documentation that demonstrates that you’ve met the criteria. 

Obtaining Asylum as a Derivative Beneficiary

If you have a spouse or a parent who has recently received asylum status in the United States, filing a separate asylum claim may not be the most effective way to seek asylum status. 

Adults who have received asylum status in the United States within the past two years can sponsor their spouses or unmarried children under the age of 21 for asylum. If you fit into either of these categories, your best option for seeking asylum may be through your family member’s petition to grant you derivative asylee benefits.

What Is Defensive Asylum?

Defensive asylum is a defense strategy that some people may be able to use in immigration court. If you’re facing removal proceedings, you may be able to formally request asylum. You may also be able to request withholding of removal and relief under the Convention Against Torture (“CAT”).  The help of an immigration attorney is highly recommended when you are in removal proceedings.

People are eligible to apply for asylum within the United States, regardless of how they initially arrived in the United States. This is only a valid strategy to avoid deportation if you meet the criteria for asylum and can demonstrate a well-founded fear of persecution. If you believe defensive asylum may be relevant to your case, it’s best to speak to an immigration attorney immediately.

What If Your Asylum Claim Is Denied?

If your asylum claim was denied because you don’t meet the criteria for asylum, there’s nothing to be done. If you believe you do meet the criteria for asylum and that a mistake was made with your case, you have the option to request an appeal with the Board of Immigration Appeals. It’s best to seek legal assistance when attempting to file an appeal or bring your case before an immigration judge.

Do You Need Legal Assistance With Your Asylum Case?

If you need help navigating the asylum process, especially in cases of defensive asylum, it’s best to work with an experienced immigration attorney. The legal team at Cohen, Tucker + Ades may be able to assist you. Contact us for a consultation on your case.

Sources:

Groups | Southern Poverty Law Center

INS v. Cardoza-Fonseca | Wex | US Law

Biden administration criticizes ruling striking down asylum policy | ABC News

CBP One™ Mobile Application | U.S. Customs and Border Protection