Asylum

Our firm does not handle asylum cases, but we have great respect for those immigration attorneys who specialize in this vitally important area.

Asylum law is based on the 1951 United Nations Convention on Refugees. The United States adopted the Refugee Act of 1980, which incorporated the 1951 UN Convention. This law protects people who are outside their country of nationality due to a well-founded fear of persecution on account of race, religion, nationality, or membership in a particular social group, or political opinion. The persecution must be caused by the foreign government itself, or a group that the government is unable or unwilling to control. Past persecution creates a presumption of future persecution, unless the conditions in the foreign country have changed to such an extent that future prosecution is unlikely. A person may be denied asylum if he or she has assisted in the prosecution of others, has been convicted of a serious crime in the U.S. or overseas, has been resettled in a safe third country, has engaged in terrorism or is a national security risk, or has had a previous application denied (with limited exceptions).

There are several ways to apply for asylum.

• A person in the United States may apply for asylum using INS Form I-539, along with detailed evidence of the likelihood of persecution. The form must be filed at an INS Service Center within one year of arrival in the United States. There are very limited exceptions to the one-year rule. This is called an affirmative application. If the person is in legal status in the United States, the application will be decided by the INS. An asylum officer will conduct an interview with the applicant which lasts approximately forty-five minutes. An applicant who does not speak English must bring his or her own interpreter.
• A person in the United States who is in removal proceedings started by the INS may apply for asylum to the immigration judge. This is done by presenting an I-539 at the Master Calendar hearing and serving a copy on the INS attorney. The immigration judge will hold a hearing and decide the application. A person who has filed an affirmative application with the INS, but who is not in legal status in the United States, will also be referred to immigration court for a decision.
• A person arriving in the United States with false documents or no documents, may also apply for asylum. An INS official will interview the person to determine if the person has a credible fear of persecution. This means there is a "significant possibility" the person will be able to establish an asylum claim. The person will be detained until a determination is made. An applicant may appeal an adverse decision to an immigration judge. If the determination is made that the person lacks credible fear, he or she will be removed from the United States. If the person is found to have a credible fear, the asylum application will proceed before an immigration judge.

If asylum is granted, a person may apply for status for the spouse and minor children by filing form I-730. This must be done within two years of the grant of asylum. Also, a person granted asylum may apply for permanent residence after one year. Only 10,000 people can get green cards each year as asylees, so there is a long waiting period. There are presently close to 200,000 pending asylee adjustments.

An asylum denial may be appealed, sometimes resulting in extended stays in the United States while the legal process takes its course.