You can apply for asylum or refugee status in the U.S. by submitting a form (I-589) to U.S. Citizenship and Immigration Services (USCIS). The form can be submitted either at a U.S. embassy or consulate abroad (if you are outside the U.S.) or to the USCIS office (if you are already in the U.S.). Along with the form, you will need to provide supporting documentation and evidence to support your claim for asylum or refugee status. There are strict deadlines for filing for asylum, and missing the deadline will result in the denial of the application.
You should seek the assistance of an immigration lawyer or a qualified representative to guide you through the process and assist you in preparing your application.
Title 42 Under the Trump Administration
Title 42 is a U.S. legal provision invoked by the Centers for Disease Control and Prevention (CDC) during the COVID-19 pandemic. The provision allowed the government to quickly expel specific individuals at the border without going through the standard immigration procedures, including the ability to apply for asylum.
Under Title 42, the CDC issued an order allowing the U.S. government to quickly expel individuals apprehended at the border and turn them back to their home country without letting them apply for asylum or other forms of relief. The CDC cited the need to protect public health and prevent the spread of COVID-19 as the reason for the order.
This policy was widely criticized as it resulted in the quick expulsion of thousands of individuals, including asylum seekers, without allowing them to have their claims heard. The government defended the policy as a necessary measure to protect public health during the pandemic.
The U.S. Government, in December 2020, announced the end of this policy. However, according to the recent Supreme Court order released on December 27, 2022, the Title 42 public health order will continue to be enforced. The government will expel Individuals who enter the country back to their home countries.
Asylum or Refugee Status: Who Is Eligible?
Asylum or refugee status in the U.S. is available to individuals unable or unwilling to return to their home country because of persecution or a well-founded fear of persecution based on religion, race, political opinion, nationality, or membership in a particular social group.
To be eligible for asylum, an individual must be physically present in the U.S. and apply for asylum one year after their last entry into the country. Some exceptions exist to the one-year deadline, for example, changed country conditions or extraordinary circumstances.
To be eligible for refugee status, an individual must be outside of the U.S. and apply through the U.S. Refugee Admissions Program (USRAP) or a designated referral organization.
Being eligible for asylum or refugee status does not guarantee it will be granted. The final decision is based on the case's merit, and the evidence presented.
Applying for Asylum Status in the U.S.
Applying for asylum status in the U.S. can be done by submitting a form (I-589) to the U.S. Citizenship and Immigration Services (USCIS) either at a U.S. embassy or consulate abroad if you are outside the U.S. or to the USCIS office if you are already in the U.S.
When applying for asylum, you must meet the deadline one year from the date of the last entry into the country. You can access the exceptions to the one-year deadline, but applying as soon as possible is best.
To be eligible for asylum, an individual must demonstrate a well-founded fear of persecution based on religion, race, political opinion, nationality, or membership in a particular social group if they return to their home country.
Along with the form, the applicant must provide supporting documentation and evidence to support the claim for asylum, including proof of identity, birth certificates, police certificates, and documents demonstrating persecution or fear of persecution.
Assistance from a qualified and experienced immigration lawyer is pivotal since he/she will guide you through the process and assist you in preparing your application.
After applying, the applicant will be scheduled for an interview with an asylum officer. If the officer determines that the applicant has a credible fear of persecution, the case will be referred to an immigration judge for a hearing. The judge will make the final decision on whether to grant asylum or not.
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Applying for Asylum Status at U.S. Borders and Entry Points
Applying for asylum status in the U.S. can be done through two main channels:
- Affirmative asylum and
- Defensive asylum.
Affirmative Asylum
Applying for asylum status at U.S. borders and entry points is known as "affirmative asylum." You start the application process by submitting a form (I-589) to the U.S. Citizenship and Immigration Services (USCIS) at a port of entry (POE) or the nearest asylum office if the individual is already in the U.S.
When applying for asylum at the border or entry points, you must meet the application deadline one year from your last entry date into the country.
Along with the form, you must provide supporting documentation and evidence to support the claim for asylum, including identification, birth certificates, police certificates, and documents demonstrating the persecution or fear of persecution.
If an individual expresses a fear of return at a POE and is found to have a credible fear of persecution, they will be placed in "removal proceedings" and a hearing before an immigration judge will be scheduled.
It is worth mentioning that there is a different process for individuals apprehended at the border or entry points and seeking asylum. This process is called "defensive asylum." In this case, the individual is placed in removal proceedings, and the asylum claim is considered a defense against removal.
Defensive Asylum
Defensive asylum is the process by which an individual apprehended at the border or entry points and placed in removal proceedings by the U.S. The Department of Homeland Security (DHS) can apply for asylum in the country. The individual is placed in deportation proceedings, and the asylum claim is considered a defense against removal.
When an individual expresses a fear of return at a port of entry (POE) or is apprehended by immigration authorities, they will be placed in "removal proceedings." The individual will be allowed to apply for relief from removal, which includes applying for asylum. An asylum officer will interview the asylum seeker to determine if they have a credible fear of persecution if they are returned to their home country. If the asylum officer finds that the individual has a reasonable fear, the case will proceed to an immigration judge for a hearing.
At the hearing, the individual will have the opportunity to present evidence and testimony to demonstrate that they meet the eligibility criteria for asylum. Further, the applicant must demonstrate a well-founded fear of persecution based on religion, race, political opinion, nationality, or membership in a particular social group. The judge will then decide on the individual's asylum application.
Note: The defensive asylum process is more adversarial than the affirmative asylum process. The burden of proof is higher. Individuals in removal proceedings are not eligible for employment authorization while their case is pending. Moreover, they could be placed in immigration detention while their case is pending.
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Applying in the U.S.
You have more time to apply for asylum if you enter the country. You have up to one year from the entry date to start the process. To apply, you must fill out Form I-589 and mail it to the U.S. Citizenship and Immigration Services (USCIS) with other supporting documents. These include an affidavit, a personal statement, and documents supporting your claims, including newspaper articles, group membership cards, or medical records.
It is also recommended that you apply for alternative forms of relief, for example, withholding of removal or protection under the Convention Against Torture. The process is free of charge. After submitting your application, you will be scheduled for an interview with an asylum officer at a USCIS office, which can take several years, depending on the region. An attorney can help you prepare for and even attend the interview.
The interview's outcome can be denied and referred to an immigration court, where you can present your case again and add more evidence. If the claim is denied, you can appeal to the Board of Immigration Appeals, a federal appeals court, or even the U.S. Supreme Court.
Applying for Refugee Status
Applying for refugee status in the U.S. is done through the U.S. Refugee Admissions Program (USRAP). The process typically begins with a referral from the United Nations High Commissioner for Refugees (UNHCR) or a U.S. embassy or consulate. Alternatively, an individual can apply for refugee status through a designated referral organization.
The first step in the process is to complete a refugee application form (DS-260) and submit it along with supporting documents, including proof of identity, birth certificates, and police certificates. The Department of Homeland Security (DHS) will review the application to determine if the individual is eligible for refugee status.
If the individual is determined to be eligible, they will be scheduled for an interview with a DHS officer. The interview determines if the individual has a well-founded fear of persecution and if they meet the other criteria for refugee status.
If the department approves the individual for refugee status, they will undergo security and medical screenings before being cleared for travel to the U.S. They will be assisted with finding housing, employment, and other services to help them get settled in the country once in the country.
Note: The entire process can take several months or even years, and there is no guarantee of approval.
Refugee Admissions Program (USRAP)
The U.S. Refugee Admissions Program (USRAP) is a program run by the Department of State (DOS) and the Department of Homeland Security (DHS). It allows individuals outside the United States who are of special humanitarian concern to be admitted to the U.S. as refugees. The program is designed to provide a haven for individuals who have been persecuted or have a well-founded fear of persecution because of their religion, race, political opinion, nationality, or membership in a particular social group.
Applying to the USRAP typically begins with a referral from the United Nations High Commissioner for Refugees (UNHCR) or a U.S. embassy or consulate. Alternatively, an individual can apply for refugee status through a designated referral organization. After the referral, the individual will be asked to complete a refugee application form (DS-260) and submit it along with supporting documents, which include proof of identity, birth certificates, and police certificates. The DHS will review the application to determine if the individual is eligible for refugee status.
The entire process can take several months or even years, and there is no guarantee of approval. The President sets the number of refugees admitted to the U.S. each year, which can vary from year to year.
Can I Still Apply for Asylum After the One-Year Filing Deadline?
Under normal circumstances, individuals must file for asylum one year after their last entry into the United States. However, certain exceptions to this one-year filing deadline could allow an individual to apply for asylum after the deadline has passed.
Some of the exceptions to the one-year filing deadline include the following:
- Changed country conditions — If an individual's home country has changed significantly since they last entered the United States, they could apply for asylum after the one-year deadline.
- Extraordinary circumstances — If an individual can demonstrate that exceptional circumstances prevented them from filing for asylum within the one-year deadline, they could apply for asylum after the deadline has passed. These circumstances could include serious illness, mental or physical disability, or ineffective assistance of counsel.
- Newly discovered evidence — If an individual can show that new evidence has emerged and it is material to their asylum claim and that they were not aware of this evidence within the one-year filing deadline, they could apply for asylum after the deadline has passed.
- Humanitarian reasons — If an individual can demonstrate humanitarian reasons for granting their asylum application despite the one-year deadline, their application will be received past the deadline.
Note: These exceptions are not automatic. Each case is evaluated on its merits, and the burden of proof is on the applicant.
How Presidential Administration Changes Affect an Individual’s U.S. Asylum Prospects
A presidential administration's policies and priorities can significantly impact an individual's asylum prospects for the following reasons:
- Policy Changes
Presidential administrations can change asylum policies and procedures through executive actions, regulations, and guidance. These changes can make it more or less complicated for individuals to qualify for asylum or to navigate the asylum process.
Several policy changes have been made regarding immigration and asylum between the Trump and Biden administrations.
The Trump administration enacted several policies that made it more difficult for people to qualify for and navigate the asylum process, such as the:
- Remain in Mexico policy which required certain non-Mexican asylum seekers to wait in Mexico for their U.S. court hearings, and
- Third Safe Country agreement, which aimed to restrict asylum seekers from entering the U.S. if they had passed through another country first
The Biden administration has taken steps to repeal or review some of the Trump administration's immigration policies, including the "Remain in Mexico" policy and the "Third Safe Country Agreement."
The Trump administration also implemented the "zero-tolerance" policy, which resulted in the separation of families at the U.S.-Mexico border, and the "public charge rule," which made it harder for individuals to obtain green cards if they had used certain government benefits. The Biden administration is in the process of reversing these policies.
The Trump administration also implemented the "Travel Ban,” which restricted the entry of people from several Muslim-majority countries. The Biden administration has lifted this policy.
The Biden administration is also taking steps to address the root causes of migration through diplomatic efforts and aid to countries in the Northern Triangle of Central America (Guatemala, Honduras, and El Salvador).
The Biden administration has also proposed a comprehensive immigration reform package that includes a pathway to citizenship for undocumented immigrants, improvements to the asylum system, and changes to the legal immigration system.
It is important to note that many of these policy changes are still being implemented. Some face legal challenges. Additionally, the situation is fluid and can change rapidly with new policies and executive actions.
It is worth noting that the U.S. asylum system is complex and multi-layered, involving multiple branches of government and various levels of jurisdiction, so the impact of a presidential administration on an individual's asylum prospects can vary.
Find an Los Angeles Immigration Attorney Near Me
Applying for asylum or refugee status in the United States can be complex and time-consuming. There are strict deadlines and eligibility requirements that must be met. The process can be further complicated by the ongoing use of Title 42, which allows for the quick expulsion of particular individuals at the border without going through normal immigration procedures. However, exceptions to the one-year filing deadline for asylum could allow an individual to apply for asylum after the deadline has passed.
It is crucial for individuals seeking asylum or refugee status in the United States to understand their rights and the process involved. It is highly recommended that anyone seeking asylum or refugee status in the United States contact an immigration attorney for assistance. An experienced immigration attorney can help individuals navigate the complex process, prepare their applications, and represent them in court if necessary. With the help of an immigration attorney, individuals can increase their chances of success and ensure their rights are protected throughout the process.
At California Immigration Attorney, we are ready to take up your case. Our years of experience and knowledge of immigration laws and procedures put us in the best position to help you. Contact us today at 424-789-8809 for a case evaluation.