Jarbath Peña Law Group PA

Apr 224 min read

Applying for Asylum in the U.S.

By Jarbath Pena Law Group

Refugees lined up, with U.S. Flag stylistically draped in front of image.

In a world marred by conflict, persecution, and human rights violations, seeking asylum stands as a beacon of hope for those fleeing persecution in their home countries. The United States, as a signatory to international conventions, offers asylum to individuals who meet the criteria for refugee status. Form I-589, the Application for Asylum and for Withholding of Removal, is the key document in this process.

In this blog, the lawyers at The Jarbath Peña Law Group will explore what asylum entails, the difference between affirmative and defensive asylum, qualifications for asylum, the application process, the one-year asylum bar, and the importance of legal representation in navigating this complex journey.

What Is Asylum?

Hands holding torn papers. Left hand Refugee, Right hand Asylum

Asylum is a form of protection a country grants to individuals who have fled their home countries. They might have fled due to persecution or a well-founded fear of persecution based on race, religion, nationality.

Affirmative vs. Defensive Asylum

There are two main pathways to apply for asylum in the U.S. You can seek affirmative asylum or defensive asylum.

Affirmative Asylum. This process is for individuals not in removal proceedings who proactively apply for asylum with the U.S.Citizenship and Immigration Services (USCIS). Applicants submit Form I-589 along with supporting evidence to demonstrate their eligibility for asylum based on political opinion, or membership in a particular social group.
Defensive Asylum. On the other hand, defensive asylum is for individuals who are already in removal proceedings before an immigration judge. They may seek asylum as a defense against removal from the country.

The United States grants asylum to those who meet the criteria outlined in the Immigration and Nationality Act (INA) Section 208. If you receive asylum, it allows you to remain in the country and eventually become eligible for lawful permanent residency and citizenship. You can apply either affirmatively or defensively—depending on your circumstances.

How Do I Qualify for Asylum?

To qualify for asylum in the U.S., you must demonstrate that you have suffered persecution or have a well-founded fear of persecution in your home country. This fear must be credible and based on past persecution, a genuine belief of future persecution, or membership in a persecuted group.

How to Apply for Asylum: The Application Process

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Your current immigration status affects how you apply for asylum. If the USCIS grants you asylum status, you can apply for a green card. Down the road, you can also apply for U.S. citizenship.

Arrival in the U.S.

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To apply for asylum affirmatively, you must be physically present in the United States, regardless of your immigration status.

Complete the Application for Asylum

Application for Asylum with blue pen, paper clip and a USA flag in back.

The first step in the affirmative asylum process is to complete Form I-589 and submit it to USCIS along with any supporting documentation, such as personal statements, affidavits, and evidence of persecution.

Gather Supporting Documentation

Along with Form I-589, applicants must submit supporting evidence to corroborate their claims of persecution. This may include witness statements, affidavits, country condition reports, medical records, photographs, police reports, medical reports, newspaper articles, and other relevant documents.

Preparing your asylum application can require revisiting traumatic memories in-depth. Your attorney can help minimize the stress by guiding you through compiling the documents and helping you to write your personal statement, ensuring that you highlight the poignant and relavant points towards getting your asylum granted. They can also draft a legal brief explaining why you qualify for asylum. A brief is an especially important for document for asylum seekers.

Submit the Application and Documentation

Image of person behind two large stacks of paper. Person wearing white shirt and blue jacket has her hands on top of one stacks, and there is a book shelf behind them.

Once you complete the application and assemble all supporting documents, you will submit it all to the USCIS Service Center with jurisdiction over your place of residence.

Attend Biometrics Appointment (Affirmative Asylum Seekers)

After submitting your application, USCIS will schedule you for a biometrics appointment to collect your fingerprints, photograph, and signature for background checks. Generally, this takes place at the nearest USCIS office.

Attend Asylum Interview (Affirmative Asylum Seekers)

If the asylum officer determines you meet the initial eligibility criteria, they will schedule you for an interview with a USCIS officer. During this interview, you will have the opportunity to present your case and provide additional evidence. The interviewer will check your story to see if it matches what you submitted, and they will check to see if you are barred from asylum for any reason.

Attend Your Individual Hearing (Defensive Asylum Seekers Only)

If you are in removal proceedings, your asylum claim will be heard during an individual hearing before an immigration judge. At the hearing, you can present witness testimony and offer exhibits supporting your claim.

Await Decision

Following the interview, USCIS will adjudicate the asylum application and issue a decision. If granted asylum, you may apply for employment authorization and eventually pursue lawful permanent residency. This process can take several months or even years due to backlogs in the immigration system. Your attorney knows how to check on the status of your application, and you can also check USCIS’s expected processing times online.

Receive Decision and Appeal, If Necessary

If USCIS approves your asylum application, you will be granted asylum status and may apply for permanent residency after one year. If denied, you have the right to appeal the decision. But there is only a small window to do so.

The One-Year Asylum Bar

It’s essential to note the one-year asylum filing deadline. Under INA section 208(a)(2)(B), individuals must apply for asylum within one year of their arrival in the United States—unless they can demonstrate changed or extraordinary circumstances that prevented them from filing within the one-year period. Failure to do so may result in the automatic denial of your asylum application.

Why Hire a Lawyer to Help with This Process?

Navigating the asylum process can be challenging and complex. This is especially true for individuals who have experienced trauma and persecution and who are unfamiliar with U.S. immigration laws and procedures. Often, asylum seekers face language barriers and other obstacles that can impede their ability to effectively advocate for themselves.

Headhsot of Fritznie Jarbaath, Esq and Melisa Pena Esq., with Meet the Team on top.

Hiring an experienced immigration lawyer, like those at The Jarbath Peña Law Group, can greatly increase your chances of success. A knowledgeable attorney can provide invaluable assistance in preparing the asylum application, gathering supporting evidence, and representing you during interviews and hearings. They can also help navigate complex legal issues and ensure that the applicant's rights are protected throughout the process.

Contact us today, either by phone at (305) 615-1005 or through our online contact form. We look forward to meeting you and discussing how we can help you move forward.