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Asylum & Refugee Status

The two main ways of obtaining asylum in the United States are through the affirmative process and through the defensive process.

Key Differences Between “Affirmative” and “Defensive” Asylum Process

Affirmative

Defensive

Asylum-seeker has not been placed in removal proceedings

Asylum-seeker has been placed in removal proceedings in Immigration Court

Asylum-seeker affirmatively submits his or her asylum application to a USCIS Service Center

Asylum-seeker:

  • Is referred by an Asylum Officer
  • Is placed in removal proceedings for immigration violations, or
  • Tried to enter the U.S. at a port-of-entry without proper documents and was found to have a credible fear of persecution or torture

Asylum-seeker appears before a USCIS Asylum Officer

Asylum-seeker appears before an Immigration Judge with the Executive Office for Immigration Review

Non-adversarial interview

Adversarial court hearing

U.S. “Affirmative” Asylum Processing with USCIS

In the affirmative asylum process, individuals who are physically present in the United States, regardless of how they got here and regardless of their current immigration status, may apply for asylum.  They do so “affirmatively” by submitting an application to USCIS. In keeping with the idea that a genuine asylum-seeker should present himself/herself to authorities “without delay,” asylum-seekers must apply for asylum within one year from the date of last arrival in the United States, unless they can show changed circumstances that materially affect their eligibility or extraordinary circumstances relating to the delay in filing, and that they filed within a reasonable amount of time given those circumstances. They file an asylum application (Form I-589) by sending it to a USCIS Service Center and are seen by Asylum Officers – in non-adversarial interviews.  The interviews take place at one of the eight Asylum Offices throughout the U.S. or, if the applicant lives far from one of those offices, at a District Office.

It is important to note that affirmative asylum applicants are almost never detained.  They are free to live in the U.S. pending the completion of their asylum processing with USCIS and, if found ineligible by USCIS, then with an Immigration Judge (see U.S. “Defensive” Asylum Processing with EOIR).  Normally, an affirmative asylum applicant is interviewed by USCIS within 43 days of application and, if not approved, is referred by USCIS to an Immigration Judge at the Executive Office for Immigration Review (EOIR) for further and de novo consideration.  The time period is somewhat longer if the applicant does not reside near one of the eight Asylum Offices and an Asylum Officer is required to go to a distant District Office to conduct the interview.  Asylum applicants referred to an Immigration Judge for such processing are also not detained.

Since the successful asylum reforms of 1995, this processing is usually completed within 6 months of the initial application, including processing by the Immigration Judge if USCIS could not approve the application and referred it to the judge.  If USCIS can approve the application, the decision is usually issued within 60 days from the initial application.  During this time, most asylum applicants are not authorized to work. 

The Affirmative Asylum Process at a Glance


 
STEP ONE: Asylum-Seeker Arrives in the United States

An asylum-seeker is generally eligible to apply for asylum under INA 208(a) if he or she:

  • is arriving in or physically present in the United States, and
  • files within one year of arriving in the United States or establishes that an exception applies.

STEP TWO: Asylum-Seeker Applies for Asylum

Asylum-seeker files Form I-589, Application for Asylum and Withholding of Removal, with the appropriate Service Center within one year of last arrival in the United States (unless an exception applies).

STEP THREE: Applicant is Fingerprinted and Background Security Checks Conducted

Applicants between 14 and 79 years of age receive a notice from the Service Center to go to an Application Support Center or authorized Designated Law Enforcement Agency to have their fingerprints taken.

STEP FOUR: Applicant Receives Interview Notice

In most cases, an applicant will receive a notice stating the date, location, and time of the asylum interview within 21 days after the applicant mailed a complete Form I-589 to the Service Center.

STEP FIVE: Applicant is Interviewed by an Asylum Officer

The applicant is interviewed by an Asylum Officer at either:

  • one of the eight asylum offices located in Arlington, VA; Chicago, IL; Houston, TX; Los Angeles, CA; Miami, FL; Newark (Lyndhurst), NJ; New York (Rosedale), NY; and San Francisco, CA - OR
  • a district office

In the majority of cases, the applicant is interviewed within 43 days after the filing date. The exception is for those who are interviewed at the district offices. Asylum officers travel to certain district offices to interview applicants who live far from the eight asylum offices.

STEP SIX: Asylum Officer Makes Determination on Eligibility and Supervisory Asylum Officer Reviews the Decision

The Asylum Officer determines whether the applicant:

  • meets the definition of a refugee in INA 101(a)(42)(A), and
  • is barred from being granted asylum under INA 208(b)(2).

A Supervisory Asylum Officer reviews the Asylum Officer’s decision to determine if it is consistent with the law. Depending on the case, the Supervisory Asylum Officer may refer the decision to Asylum Division Headquarters staff for review.

STEP SEVEN: Applicant Receives Decision

In most cases, the applicant returns to the asylum office to pick up the decision two weeks after the interview was conducted.

The applicant will generally receive the decision 60 days after the filing date.


Longer processing times may be required for an applicant who is currently in valid status, was interviewed at a district office, or whose case is being reviewed by Asylum Division Headquarters staff. The decision is generally mailed to the applicant in these situations.

For the latest statistics on the affirmative asylum program, see the Monthly Statistical Report, a publication of the DHS Office of Immigration Statistics.

U.S. “Defensive” Asylum Processing with EOIR

Immigration Judges with the Executive Office for Immigration Review (EOIR) hear asylum applications only in the context of “defensive” asylum proceedings.  That is, applicants request asylum as a defense against removal from the United States.  Immigration Judges (IJs) hear such cases in adversarial (court-room-like) proceedings: the IJ is the judge that hears the applicant’s claim and also hears any concerns about the validity of the claim raised by the Government, which is represented by an attorney.  The IJ then makes a determination of eligibility.  If the applicant is not found eligible for asylum, the IJ determines whether the applicant is eligible for any other forms of relief from removal and, if not, will order the individual removed from the United States.

Aliens generally are placed into defensive asylum processing in one of two ways:

  • they are referred to an IJ by Asylum Officers who did not grant asylum to them, or
  • they are placed in removal proceedings because they
    • are undocumented or in violation of their status when apprehended in the U.S. or
    • were caught trying to enter the U.S. without proper documentation (usually at a port-of-entry) and were found to have a credible fear of persecution or torture.

For the latest statistics on those who request asylum before an Immigration Judge, see “Asylum Statistics” and the “Statistical Yearbook”.

Asylum-Seekers and Expedited Removal

Most undocumented migrants stopped by immigration officials at a U.S. port-of-entry (POE) may be subject to expedited removal.  This means that, for persons other than genuine asylum seekers, refusal of admission and/or removal from the United States can be effected quickly.

However, some of the individuals arriving at an Immigration POE without proper documentation are genuine asylum-seekers fleeing persecution in their home country.  Because of the circumstances of their flight from their homes and departure from their countries, they may arrive in the U.S. with no documents or with fraudulent documents obtained as the only way out of their country.

Any person subject to expedited removal who raises a claim for asylum – or expresses fear of removal – will be given the opportunity to explain his or her fears to an Asylum Officer.  Recognizing that some refugees may be hesitant to come forward with a request for protection at the time of arrival, immigration policy and procedures require Inspectors to ask each individual who may be subject to expedited removal the following series of “protection questions” to identify anyone who is afraid of return:

  • Why did you leave your home country or country of last residence?
  • Do you have any fear or concern about being returned to your home country or being removed from the United States?
  • Would you be harmed if you were returned to your home country or country of last residence?
  • Do you have any questions or is there anything else you would like to add?

If the individual expresses a fear of return, the individual is detained and given an interview by an Asylum Officer.  The role of the Asylum Officer is as an Asylum Pre-Screening Officer (APSO) who interviews the person to determine if he or she has a credible fear of persecution or torture.  This is a standard that is broader -- and the burden of proof easier to meet -- than the well-founded fear of persecution standard needed to obtain asylum.  Those found to have a “credible fear” are referred to an Immigration Judge to hear and then judge their asylum claims.  This places the asylum seeker on the “defensive” path to asylum. Most individuals who are found to have a credible fear of these are almost immediately released to relatives or community groups, or on their own recognizance.  However, some are not released, and instead are detained while their asylum claims are pending with the Immigration Judge.

If the individual who expresses a fear of return is arriving from Canada at a U.S.-Canadian land border port of entry, or is being removed from Canada and transiting through the United States, the APSO will conduct a threshold screening interview to determine whether he or she must seek protection in Canada instead of the United States. If the individual is eligible to seek protection in the United States, the APSO then will determine whether he or she has a credible fear of persecution or torture.

Types of Asylum Decisions

An asylum applicant will generally receive a decision on his or her application 14 days after the asylum interview and 60 days after filing a complete Form I-589 application with the appropriate Service Center, with some exceptions. In some cases, the decision will be mailed to the applicant. The applicant will receive one of the following decisions:

Grant of Asylum

An applicant receives a Grant of Asylum when it has been determined that he or she is eligible for asylum in the United States. The applicant will receive a completed Form I-94, Arrival Departure Record, indicating that the applicant has been granted asylum status in the United States pursuant to 208(a) of the Immigration and Nationality Act (INA). The grant of asylum includes the applicant’s dependents who are present in the United States if they were included in the applicant’s asylum application, and the applicant established a qualifying relationship to them by a preponderance of evidence.

A grant of asylum in the United States is for an indefinite period; however, asylum status does not give the applicant the right to remain permanently in the United States. Asylum status may be terminated if the applicant no longer has a well-founded fear of persecution because of a fundamental change in circumstances, the applicant has obtained protection from another country, or the applicant has committed certain crimes or engaged in other activity that makes the applicant ineligible to retain asylum status in the United States. See INA 208(c)(2).

An asylee may apply for certain benefits. These include the following:

  1. Employment Authorization

Effective November 10, 2002, asylum applicants who have been granted asylum will no longer have to file an EAD application with the Nebraska Service Center in order to obtain an initial EAD. Section 309 of the Enhanced Border Security and Visa Entry Reform Act of 2002 requires USCIS to issue an employment authorization document containing at least a fingerprint and photograph to an asylee immediately upon a grant of asylum. If an asylee wishes to renew his or her EAD, the asylee will still need to submit an EAD application with the Nebraska Service Center, and pay a fee or request a fee waiver under 8 CFR 103.7(c). However, asylees are work-authorized regardless of whether or not they are in possession of an EAD. An asylee may want to obtain an EAD from USCIS in order to meet other obligations. For example, the EAD, which is evidence of both identity and employment authorization, can be presented to an employer as a List A document of the Employment Eligibility Verification form (Form I-9). Also, the EAD can serve as evidence of alien registration, which is required by law to be carried by registered aliens at all times.

  1. Social Security Cards

An asylee may immediately apply for an unrestricted Social Security card at any Social Security office. The asylee can get an Application for a Social Security Card (Form SS-5) or more information about applying for a Social Security card by going to http://www.ssa.gov, calling the toll-free number 1-800-772-1213, or visiting a local Social Security office.

  1. Employment Assistance

An asylee is eligible to receive a variety of services under Title I of the Workforce Investment Act of 1998. Such services include job search assistance, career counseling, and occupational skills training. These and other services are available at local One-Stop Career Centers. To obtain more information about One-Stop Career Centers, asylees may call 1-877-US2-JOBS. The information is also available on-line through America’s Service Locator at http://www.servicelocator.org.

  1. Derivative Asylum Status

An asylee may request derivative asylum status for any spouse or child (unmarried and under 21 years of age as of the date the asylee filed the asylum application, as long as the asylum application was pending on or after August 6, 2002) who is not included in the asylum decision and with whom the asylee has a qualifying relationship. To request derivative asylum status, the asylee must submit a Form I-730, Refugee and Asylee Relative Petition, to the Nebraska Service Center, P.O. Box 87730, Lincoln, NE 68501-7730. The Form I-730 must be filed for each qualifying family member within two years of the date the asylee was granted asylum status, unless USCIS determines that this time period should be extended for humanitarian reasons.

  1. Adjustment of Status

An asylee may apply for lawful permanent resident status under section 209(b) of the Immigration and Nationality Act after the asylee has been physically present in the United States for a period of one year after the date he or she was granted asylum status. To apply for lawful permanent residence status, the asylee must submit a separate Form I-485, Application to Register Permanent Residence or Adjust Status, for himself or herself and each qualifying family member to the Nebraska Service Center, P.O. Box 87485, Lincoln, Nebraska, 68501-7485. If the asylee has a child who turns 21 years old prior to the completion of the adjustment process and prior to August 6, 2002, the child shall continue to be classified as a child for purposes of section 208(b)(3) of the Immigration and Nationality Act if the child was under 21 years of age at the date of filing the asylum application.

  1. Assistance and Services through the Office of Refugee Resettlement (ORR)

An asylee may be eligible to receive assistance and services through the Office of Refugee Resettlement (ORR). ORR funds and administers various programs, which are run by state and private, non-profit agencies throughout the United States. The programs include cash and medical assistance, employment preparation and job placement, and English language training. Many of these programs have time-limited eligibility periods that begin from the date the asylee is granted asylum. An asylee can find out what programs are available and where to go for assistance and services in his or her state by calling 1-800-354-0365. For more information about possible benefits, see http://www.acf.hhs.gov/programs/orr/asyleeinfo.htm.

  1. Travel Documents

If an asylee plans to depart the United States, he or she must obtain permission to return to the United States before departure by obtaining a Refugee Travel Document. The asylee’s qualifying family members, if any, will also have to obtain refugee travel documents before leaving the United States. A Refugee Travel Document may be used for temporary travel abroad and is required for readmission to the United States as an asylee. If an asylee does not obtain a Refugee Travel Document in advance of departure, he or she may be unable to re-enter the United States, or the asylee may be placed in removal proceedings before an Immigration Judge. To apply for a Refugee Travel Document, an asylee will need to submit a Form I-131, Application for Travel Document, with the required fee or request for fee waiver under 8 CFR 103.7(c) to the Nebraska Service Center, P.O. Box 87131, Lincoln, NE 68501-7131.

An asylee also has certain responsibilities. These include the requirement to notify USCIS of any change in address within 10 days of any such change using
Form AR-11, Alien’s Change of Address Card. Additionally, all male asylees between the ages of 18 and 26 must register for the Selective Service. To obtain information about the Selective Service and how to register, an asylee may sign on to the Selective Service website at http://www.sss.gov or obtain a Selective Service “mail-back” registration form at his or her nearest post office.

Recommended Approval
An applicant receives this letter when the Asylum Officer has made a preliminary determination to grant the applicant asylum but USCIS has not yet received the results from the mandatory, confidential investigation of the applicant’s identity and background. If the results reveal derogatory information that affects the applicant’s eligibility for asylum, USCIS may deny the applicant’s request for asylum or refer it to an Immigration Judge for further consideration.

A recommended approval is valid for the period of time necessary to obtain the required clearances. The recommended approval includes the applicant’s dependents who are present in the United States, were included in the applicant’s asylum application, and for whom the applicant has established a qualifying relationship by a preponderance of evidence.

The applicant and his or her dependents who were included in the asylum decision are eligible to apply for work authorization during the background check process pursuant to 8 CFR 274a.12(c)(8)(ii). To work in the U.S., the applicant and each qualifying family member must apply for and obtain an Employment Authorization Document (EAD). If authorized, the applicant may accept employment subject to any restrictions in the regulations or on the card. The applicant and his or her qualifying family members are not required to pay a fee with the initial request(s) for employment authorization. To obtain an EAD, the applicant must submit
Form I-765, Application for Employment Authorization, to the appropriate USCIS Service Center.

A recommended approval does not entitle the applicant’s spouse or children outside the United States, if any, to receive derivative asylum status or to be admitted to the United States. If the applicant receives a final approval of asylum, the applicant will be entitled to request derivative asylum for his or her spouse and any unmarried child(ren) under 21 years of age at the time the applicant filed
Form I-730, Refugee and Asylee Relative Petition.

If the applicant and/or his or her qualifying family members plan to depart the United States and intend to return, the applicant and his or her dependents must each obtain permission to return to the United States before leaving this country. If the applicant leaves the United States without first obtaining advance parole, it may be presumed that the applicant has abandoned his or her request for asylum. The applicant may apply for advance parole by filing a
Form I-131, Application for Travel Document, with the District Office having jurisdiction over the applicant’s place of residence. If the applicant leaves the United States with advance parole and returns to the country of claimed persecution, the applicant will be presumed to have abandoned his or her asylum request, unless the applicant can show compelling reasons for the return.

Referral to an Immigration Court
The applicant’s case will be referred to an Immigration Court when USCIS is unable to approve the application and the applicant is not in valid status. A referral is not a denial of the applicant’s asylum application. The applicant’s asylum request will be considered (without additional refiling) when the applicant appears before an Immigration Judge at the date and time listed on the charging document the applicant will receive. The determinations that USCIS made in referring the applicant’s application are not binding on the Immigration Judge, who will evaluate the applicant’s claim anew. A referral includes the dependents included in the applicant’s asylum application.

Notice of Intent to Deny
An applicant who is in valid status and found ineligible for asylum will be mailed a Notice of Intent to Deny. The letter will state the reason(s) the applicant was found ineligible for asylum. The applicant will have 16 days to submit a rebuttal or new evidence. If the applicant fails to respond within this time, the applicant’s request for asylum may be denied. If a timely rebuttal is sent, the Asylum Officer will carefully consider the rebuttal and then either approve or deny the claim.

Final Denial
An applicant who received a Notice of Intent to Deny (NOID) will be sent a Final Denial letter if the applicant failed to submit a rebuttal to the discussion in the NOID within 16 days, or the applicant submitted a rebuttal but the evidence or argument offered failed to overcome the grounds for denial as stated in the NOID. The applicant cannot appeal the Asylum Officer’s decision. The denial includes any dependents included in the applicant’s asylum application. Any employment authorization issued to the applicant as a result of having a pending application for asylum will expire 60 days from the date of the Final Denial letter or on the expiration date of the Employment Authorization Document (EAD), whichever period is longer. 

Refugees

 

Every year millions of people around the world are displaced by war, famine, and civil and political unrest. Others are forced to flee their countries in order to escape the risk of death and torture at the hands of persecutors. The United States (U.S.) works with other governmental, international, and private organizations to provide food, health care, and shelter to millions of refugees throughout the world. In addition, the United States considers persons for resettlement to the U.S. as refugees. Those admitted must be of special humanitarian concern and demonstrate that they were persecuted, or have a well-founded fear of persecution on account of race, religion, nationality, political opinion, or membership in a particular social group.

 

Each year, the State Department prepares a Report to Congress on proposed refugee admissions, then the U.S. President consults with Congress and establishes the proposed ceilings for refugee admissions for the fiscal year. For the 2005 fiscal year (i.e. October 1, 2004 - September 30, 2005), the total ceiling is set at 70,000 admissions and is allocated to six geographic regions: Africa (20,000 admissions), East Asia (13,000 admissions), Europe and Central Asia (9,500 admissions), Latin America/Caribbean (5,000 admissions), Near East/South Asia (2,500 admissions) and 20,000 reserve.

 

Definitions

Prior to 1980, departure from communist-dominated or communist-occupied states, or departure from countries in the Middle East, was generally sufficient justification for refugee eligibility. Until this time, U.S. refugee policy was dominated by Cold War geo-political concerns and strategies. The Refugee Act of 1980 sought to eliminate the prevailing geographic and ideological preferences and to emphasize that persecution, not provenance, was to be the basis for determining refugee eligibility.

The Refugee Act formally incorporated into U.S. law the international definition of refugee contained in the 1951 United Nations Convention relating to the Status of Refugees and its 1967 Protocol. A refugee is defined as a person outside of his or her country of nationality who is unable or unwilling to return 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. By Presidential Determination, certain refugees may be processed while still in their countries of origin (Cuba, Vietnam, and the former Soviet Union). While in-country processing was designed to be an exceptional remedy to refugees of compelling need, a large percentage of all refugees admitted to the United States have been processed in-country.

Under U.S. law, a person who has committed acts of persecution, or has assisted in the commission of persecution in any way, on account of race, religion, nationality, membership in a particular social group, or political opinion, is not eligible for classification as a refugee.

Case Presentation to USCIS

The steps that refugee applicants follow before their eligibility interviews with Immigration officers vary. Many applicants are referred to the United States Refugee Program (USRP) for resettlement consideration by officials of the United Nations High Commissioner for Refugees (UNHCR), while a smaller number are referred by a U.S. Embassy or Consulate. Other applicants are eligible to apply for the USRP directly because they are of nationalities designated as being of special humanitarian concern and in processing priorities eligible for resettlement consideration. Generally, Overseas Processing Entities (OPEs) or OPE representatives conduct pre-screening interviews with applicants and prepare cases for submission to USCIS; the OPE completes the required application forms and compiles any necessary documents prior to the refugee eligibility interview. In the in-country processing programs, applicants usually register their interest in refugee resettlement by mailing completed preliminary questionnaires to the appropriate processing entity.


Eligibility Determination

Eligibility for refugee status is decided on an individual, or case-by-case, basis. A personal interview of the applicant is held by an immigration officer. The interview is non-adversarial and is designed to elicit information about the applicant's claim for refugee status.

The immigration officer must determine whether the applicant has suffered past persecution, or has a well-founded fear of future persecution, on the basis of political opinion, religion, nationality, race, or membership in a particular social group. This determination requires the examination of objective and subjective elements of an applicant's claim. Conditions in the country of origin are taken into consideration and the applicant's credibility is assessed. Refugee status determinations are made according to a uniformly applied worldwide standard. Generally, all refugee applicants, with certain exceptions, are subject to the same adjudication criteria.

Legislation has altered the refugee adjudication process in certain cases. The Lautenberg Amendment (a provision of the Foreign Operations Appropriations Act for Fiscal years 1990 through 1994 and subsequently extended) mandated that the Attorney General (Secretary) identify categories of former Soviets (specifically Jews, Evangelical Christians, Ukrainian Catholics, and Ukrainian Orthodox), Vietnamese, Lao, and Khmer, who are likely targets of persecution. Under this legislation, a category applicant may establish a well-founded fear of persecution by asserting a fear of persecution and asserting a credible basis for concern about such fear.

Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the definition of refugee was expanded to include persons who have resisted or been subjected to, or have a well-founded fear of being subjected to coercive population control measures.


Post-Interview Processing

After the interview, those applicants who are found eligible for refugee status must satisfy medical and security criteria and must be assigned a sponsor assurance. A refugee admission number is allocated to the applicant and is then subtracted from the annual ceiling. Transportation arrangements are made through the International Organization for Migration (IOM). If the refugee is unable to finance his or her transportation costs, the refugee may be eligible for a travel loan, whereby he or she must agree to repay the cost of airfare.

At the port of entry, the refugee is admitted to the
United States and granted employment authorization. After one year, a refugee is eligible for adjustment of status to lawful permanent resident. Five years after admission, a refugee is eligible for naturalization to U.S. citizenship.

 
 





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