Rule of Law Through Technology : Level 2 Page

Home

US Immigration Law

Asylum
(If Inside US or at a port of entry)

Background on Asylum Law

You may obtain protection as a refugee if you are currently in the United States or at a U.S. land border by applying for asylum in the U.S. An asylum application may be filed even if you are here illegally or in deportation or exclusion proceedings. Like those seeking refugee visas, asylum seekers must also meet the statutory definition of a "refugee" contained in the Immigration and Naturalization Act.

Congress codified the right to seek asylum in 1980 through the Refugee Act. The Refugee Act is based on the 1951 United Nations Convention Relating to the Status of Refugees and the 1967 United Nations Protocol Relating to the Status of Refugees, which implemented the Convention. Under U.S. law, the United States Attorney General enforces all U.S. immigration law, including asylum. The Immigration and Naturalization Service (INS) is the U.S. agency responsible for implementing and interpreting asylum law.

How Do I Know If I Qualify For Asylum?

In order to qualify for asylum. an applicant must beet the definition of a "refugee" contained in the Immigration and Naturalization Act. Section 101(a)(42)(A) of the Immigration and Nationality Act defines as:

Any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country 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.

What might exclude me from eligibility for asylee status?

The following persons are not eligible for asylum:

Aliens who are persecutors of others, i.e. if the applicant has subjected someone else to harm on account of one of the protected grounds;

Aliens who are firmly resettled within the meaning of 8 C.F.R. § 208.15;

Aliens who previously filed for asylum and were denied;

Aliens who did not file for asylum within one year of arrival in the U.S., unless they can show changed circumstances in their country or extraordinary circumstances that lead to their late filing;

Aliens convicted of an aggravated felony, as defined by immigration law. An aggravated felony includes many crimes. The most common are: drug trafficking--any crime involving distribution, importation or sale of drugs, no matter the amount or the sentence; the crime of theft, robbery or burglary with one year sentence whether imposed or suspended; and the crime of violence with a one year sentence whether imposed or suspended;

Aliens convicted of a particularly serious crime. Most of the crimes that are considered particularly serious are aggravated felonies under immigration law. A particularly serious crime usually involves violence against persons, or risk of violence to persons. Occasionally, the government may argue that a crime is particularly serious, even though it is not defined as an aggravated felony under immigration law, such as assault with a deadly weapon or robbery with less than a year sentence;

Aliens who pose a danger to the security of the U.S.;

Aliens who committed a serious nonpolitical crime; and

Aliens who may be removed pursuant to a bilateral or multilateral agreement to a safe third country, unless the Attorney General finds it in the U.S. interest to grant asylum.

How Do I Apply For Asylum?

Within the U.S., individuals fleeing persecution can apply for asylum either affirmatively or defensively. People applying affirmatively are those who came to the U.S. either legally or illegally but have not been put into removal proceedings (deportation proceedings) by the INS. They apply with the Asylum Office, which is a separate division from the enforcement division of the INS. If an individual is arrested by the INS and put into removal proceedings, however, he/she may apply defensively, i.e. with the Immigration Judge. In either instance, the asylum application must be submitted within one year of entry into the United States, unless the individual can show extraordinary circumstances.

An immigrants who arrives in the U.S. without proper documentation and requests asylum should be aware that he/she will be detained until a "credible fear" hearing takes place. If the immigrant is not found to have a credible fear of persecution, then he/she is designated for expedited removal from the United States. If the immigrant is found to have a credible fear of persecution, then he/she will be afforded an asylum hearing. Often INS allows asylum seekers to be released from detention on bond while their case is pending. Some, however, are forced to remain in INS custody.

A complete application for asylum, whether the person is filing affirmatively or defensively, should include the following:

An INS Notice of Appearance of Attorney, Form G-28 if appropriate;

An EIOR Notice of Appearance of Attorney, Form EOIR-28 if appropriate, unless previously submitted. This is only required in removal proceedings, not affirmative applications;

The Request for Asylum application form, Form I-589, completely filled out and signed by the applicant;

An affidavit attached to the I-589 in which the applicant explains his/her case in the greatest detail possible. If the applicant does not read English, a translator's certificate should be attached at the end of the affidavit;

Attached evidence and documentation supporting the applicant's claim, including State Department human rights country reports, Amnesty international and Human Rights Watch reports, newspaper articles, and other documents the applicant has regarding his/her personal situation, with translations;

Expert Affidavits. These affidavits can be from individuals such as academics or human rights activists who have knowledge regarding country conditions. Expert affidavits can also be from physicians, counselors, or therapists who have treated the applicant or have expertise pertinent to the case.

A Biographical Information Sheet, Form G-325, for every individual 14 years of age or older included in the asylum application;

A completed fingerprint request form for every individual 14 years of age or older who is included in the asylum application;

Certificate of Service upon the INS for cases in removal proceedings. This is also recommended, but not required, for affirmative applications;

Cover Letter (optional);

Signature of the applicant and anyone, other than an immediate relative, who helped in preparing the application under penalty of perjury; and

Two photographs of every individual included in the application;

Any Evidence of Claimed Relationship for all family members included in the application, such as marriage or birth certificates.

I-589 and supporting documentation must be submitted in triplicate (this includes the original plus two copies), as well as an additional copy of the applicant's I-589 for each dependent included in the application.

Please note that all documents in a foreign language are required to be accompanied by a translation of the document in English. The translation should be properly certified. Also note that you should always send copies of the original document to the INS. In affirmative applications, bring the originals to the asylum interview with you, because the asylum officer may wish to inspect the original forms.

What Does It Mean If I Am Granted Asylum?

There are a number of benefits that come with being granted asylum in the United States. For example, an asylee may not be removed from the United States unless conditions in the asylee's home country change such that he/she can no longer be considered to have a well-founded fear of persecution. Further, an asylee may both obtain work authorization, as well as adjust to lawful permanent residency after one year of being granted asylum. Additionally, an asylee's spouse and unmarried children under 21 can also obtain asylum through the asylee.

Projects | Services | Resources | Forum | In the Media

ROLTT Project: Institutions | Sponsors | Internal | Contact Info

The Rule of Law Through Technology Initiative
is an Interprofessional Project (IPRO) of
Chicago-Kent College of Law,
Illinois Institute of Technology