Applying For Asylum In U.S. Immigration Court
Updated on 09/09/2023
From the poem by Emma Lazarus, the following words appear on a bronze plaque in the pedestal of the Statue of Liberty:
“Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!”
One element of United States immigration policy that seeks to carry out these words is asylum. The concept of asylum is that foreigners who have suffered persecution or fear that they will suffer persecution can seek protection by coming to the United States. This persecution can be due to race, religion, nationality, membership in a particular social group, or political opinion.
There are three processes to obtain asylum in the United States – the affirmative process, the merits interview process, and the defensive process. Each of these processes may involve the asylum applicant appearing before a judge in U.S. immigration court.
This article describes how you can apply for asylum in U.S. immigration court.
Asylum under Affirmative Process
Asylum under affirmative process, also known as “Affirmative Asylum Application” is applicable to foreigners who have never been in expedited removal proceedings or removal proceedings or deportation proceedings.
To obtain asylum under the affirmative process, there are two initial requirements. First, you must be physically present in the United States. Second, you must apply for asylum within one year of the date of your last arrival in the United States, unless you can show changed circumstances that materially affect your eligibility for asylum or extraordinary circumstances relating to the delay in finding, and you filed within a reasonable amount of time given those circumstances.
You may apply for affirmative asylum by filing Form I-589, “Application for Asylum and for Withholding of Removal” (“Form I-589”), with U.S. Citizenship and Immigration Services (“USCIS”). Form I-589 is 12 pages and asks for information about you (as the asylum applicant), your spouse and children, your background, and your application (including why you are applying for asylum). There is no filing fee required for Form I-589.
To qualify for affirmative asylum under Form I-589, you must establish that you are a refugee who is unable or unwilling to return to your country of nationality, or last habitual residence if you have no nationality, 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. Specifically, you must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for your persecution or why you fear persecution.
With the Form I-589, you must submit reasonably available corroborative evidence showing the general conditions in the country from which you are seeking asylum, and the specific facts on which you are relying to support your claim. Supporting evidence may include, but is not limited to, newspaper articles, affidavits of witnesses or experts, medical and/or psychological records, doctors’ statements, periodicals, journals, books, photographs, official documents, or personal statements or live testimony from witnesses or experts.
If USCIS does not approve your Form I-589, and you do not have a legal immigration status in the United States, you will be issued Form I-862, “Notice to Appear” (“NTA”). Your case will be referred to an immigration court before an immigration judge with the U.S. Department of Justice’s Executive Office for Immigration Review (“EOIR”). The immigration judge will conduct a new hearing of your case and issue a decision that is independent of the decision reached by USCIS.
You can also appear in immigration court in the following two cases:
- You were previously issued an NTA, and you filed Form I-589 with USCIS 21 calendar days or fewer after the date the NTA was filed and docketed with EOIR; and
- You were previously issued an NTA, and you filed Form I-589 with USCIS before the NTA was filed and docketed with EOIR (also applicable if you were previously issued an NTA that was not filed and docketed with EOIR).
In these two cases, USCIS will send the Form I-589 to the immigration court,which will adjudicate the Form I-589.
Asylum under Merits Interview Process
Asylum under merits interview process is only applicable to foreigners who are in expedited removal proceedings. Generally, foreigners who entered the United illegally (without inspection at the CBP port) will be placed in expedited removal proceedings.
To obtain asylum under the merits interview process, the initial requirement is that a USCIS asylum officer has determined at a “credible fear screening” interview that you have a credible fear of persecution or torture. You will have been referred to USCIS for a “credible fear screening” if you were placed in expedited removal proceedings and indicated an intention to apply for asylum, expressed a fear of persecution or torture, or expressed a fear of return to your country.
A credible fear of persecution or torture is a “significant possibility” that you can establish in an “Asylum Merits Interview” or in proceedings before an immigration judge that you have been persecuted or have a well-founded fear of persecution on account of your race, religion, nationality, membership in a particular social group, or political opinion, or it is more likely than not that you would be subject to torture, if returned to your country.
If the USCIS asylum officer finds that you have a credible fear of persecution or torture, USCIS may either:
- Schedule you for an “Asylum Merits Interview”. The “Asylum Merits Interview” is a second interview, distinct from a “credible fear screening” interview, to determine whether you are eligible for asylum; or
- Issue an NTA and have you appear before an immigration judge for consideration of your asylum claim.
If you are denied asylum at the “Asylum Merits Interview”, you will be issued an NTA to appear in immigration court before an immigration judge for streamlined removal proceedings; you will have another opportunity to present your asylum case before this immigration judge.
It also should be noted that if the USCIS asylum officer finds that you do not have a credible fear of persecution or torture at the “credible fear screening”, you can request review of this decision by an immigration judge. If this immigration judge finds that you do have a credible fear of persecution or torture, the USCIS asylum officer’s negative “credible fear” determination will be vacated.
Asylum under Defensive Process
To obtain asylum under the defensive process, the initial requirement is that you are in removal proceedings in immigration court. Individuals are placed in removal proceedings because they either:
- Were apprehended in the United States or at a U.S. port of entry without proper legal documents or in violation of their immigration status; or
- Were apprehended byU.S. Customs and Border Protection trying to enter into the United States without proper documentation.
Defensive asylum is in effect an asylum defense raised by a foreigner in any removal proceeding in immigration court. Thus, to the extent that there are removal proceedings in immigration court that are part of an affirmative asylum case (as is expressly recognized by USCIS) or a merits interview asylum case, any asylum defense raised by the foreigner in such a case can be categorized as asylum under the defensive process.
Frequently Asked Questions About Applying For Asylum in U.S. Immigration Court
As described above, there are many ways under which an asylum applicant can have a case appear in immigration court. By definition, it will occur in any defensive asylum case, and it also may arise in any affirmative asylum case or merits interview asylum case.
Here are some frequently asked questions about applying for asylum in U.S.immigration court:
- Who are the parties in immigration court?
There typically are three parties involved in an asylum immigration court case – the U.S. government (typically represented by an attorney from U.S. Immigration and Customs Enforcement), a foreigner seeking asylum (perhaps represented by an attorney, as described below), and an immigration judge.
- What is the purpose of EOIR?
The primary mission of EOIR is to adjudicate immigration cases. EOIR conducts immigration court proceedings, appellate reviews, and administrative hearings. EOIR was created on January 9, 1983. It is a separate agency within the U.S. Department of Justice, independent of other U.S. government immigration agencies.
- How many immigration judges are there and where do they serve?
Under the Office of the Chief Immigration Judge, there are currently more than 650 immigration judges. They serve in 69 immigration courts and three adjudications centers throughout the United States.
- What are the two types of hearings that commonly occur in an asylum application case?
First, there is a“Masters Calendar Hearing”. At the “Masters Calendar Hearing”, a date will be set for the “Individual Hearing”. Second, there is an “Individual Hearing”. At the “Individual Hearing”, the immigration judge will review the asylum case and issue a decision on it. It is very important that the asylum applicant show up in court at the scheduled time, date, and location for any “Hearing”.
- What evidence should an asylum applicant present in immigration court to win asylum?
Asylum is tied to persecution in a foreign country, and thus for the asylum applicant to win asylum in immigration court, evidence of such persecution must be presented. This evidence can appear in a variety of forms, including a personal statement from the asylum applicant, statements from other witnesses, an arrest warrant, a political or social membership card, a notice from a U.S. embassy, a report from a human rights organization, or a newspaper article. It is important to remember that as asylum cases are fact specific, every asylum case, and the specific evidence to be presented to win every asylum case, will be different.
- Should an asylum applicant be represented by an attorney?
There is no requirement that an asylum applicant be represented by an attorney, and immigrants in immigration court do not have a right to government-appointed counsel. However, asylum cases can be complex. The average asylum applicant likely will be unable to handle all of the necessary issues in an asylum case. It is definitely recommended that an asylum applicant be represented by an attorney with knowledge about, and successful experience in representing persons seeking, asylum in the United States.
- Can an asylum applicant use an interpreter?
When an asylum applicant does not have sufficient command of the English language to be able to fully understand and participate in immigration court proceedings, an interpreter can be provided for the asylum applicant at the expense of the U.S. government.
- What benefits are available to the asylum applicant if an immigration judge approves asylum?
Whether asylum is approved by USCIS or by an immigration judge, the asylum applicant can receive many benefits, including the right to be authorized to work in the United States, obtain a U.S. Social Security Card, receive various forms of help (including financial assistance, medical assistance, employment preparation and job placement, and English language training) from organizations funded by the Office of Refugee Resettlement, and, after one year in the United States, eligible to apply for a “green card” and thereby be entitled to permanent residence in the United States.
- Can family members of the asylum applicant benefit if an immigration judge approves asylum?
Spouses and unmarried children under the age of 21 of asylum applicants can obtain derivative asylum benefits if the asylum applicant is approved for asylum. And same as principal asylee, derivative asylees are eligible to apply for a “green card” after one year in the United States.
- Can a decision by an immigration judge be appealed?
If the immigration judge decides against asylum, the decision by the judge can be appealed. First, the decision can be appealed to the Board of Immigration Appeals (“BIA”). The asylum applicant would need to file an appeal with the BIA within 30 calendar days of the decision by the immigration judge. Second, if the BIA denies the appeal by the asylum applicant, the appeal can be filed in the general Federal court system in the United States. This appeal would then be heard by the applicable U.S. Court of Appeals and then possibly by the U.S. Supreme Court.
People in the United States often criticize the U.S. court system for its high costs and inefficiencies. However, many important rights available to people in the United States have been established or expanded through decisions by judges in the U.S. court system. For a foreigner facing persecution in a foreign country, asylum through the U.S. court system can provide the foreigner with a basic right – the right to free from persecution because of your race, religion, nationality, membership in a particular social group, or political opinion. Foreigners who view themselves as part of the “huddled masses yearning to breathe free” in a foreign country should apply for asylum in U.S. immigration court. Applying for asylum in U.S. immigration court can have life-changing consequences for the foreigner and the foreigner’s family members.