Asylum is a form of protection granted by the United States to individuals who are already present in the country and meet the legal definition of a refugee. This means they have experienced past persecution or have a well-founded fear of future persecution in their home country based on specific protected grounds. Unlike refugee status, which is generally applied for from outside the U.S., asylum is sought by those who have already arrived within U.S. borders, regardless of their manner of entry.

Defining Asylum Under U.S. Law

Under U.S. immigration law, asylum may be granted to individuals physically present in the United States (or at a port of entry) who are unable or unwilling to return to their country of nationality because of persecution or a well-founded fear of persecution on account of one or more of the following protected grounds:

• Race: Persecution based on an individual’s ethnic or racial background.
• Religion: Persecution based on an individual’s religious beliefs, practices, or affiliation.
• Nationality: Persecution based on an individual’s country of origin or citizenship.
• Membership in a Particular Social Group: Persecution based on shared characteristics that are immutable (cannot be changed), fundamental to identity, or defined by a common past experience or shared status. This can include factors like gender, sexual orientation, or family ties in certain contexts.
• Political Opinion: Persecution based on an individual’s political views, affiliations, or expressions, whether real or imputed by the persecutor.

The Asylum Application Process:

There are two primary ways to apply for asylum in the United States:

1. Affirmative Asylum: Individuals who are not currently in removal proceedings can proactively apply for asylum by filing Form I-589, Application for Asylum and Withholding of Removal, with U.S. Citizenship and Immigration Services (USCIS).

   • Filing: The application must generally be filed within one year of the applicant’s last arrival in the United States, unless the applicant can demonstrate changed circumstances that materially affect their eligibility for asylum or extraordinary circumstances relating to the delay in filing the application.
   • Asylum Interview: After filing, the applicant will typically be scheduled for an interview at a USCIS Asylum Office. During this interview, an asylum officer will ask detailed questions about the applicant’s identity, reasons for coming to the United States, and the basis for their fear of persecution.
   • Credibility Assessment: The asylum officer will assess the applicant’s credibility by evaluating the consistency, plausibility, and detail of their testimony.
   • Decision: After the interview, the asylum officer will make a recommendation, which may be an approval, a referral for further review, or a denial. If denied, and the applicant is not in valid immigration status, they may be placed in removal proceedings before an immigration judge.

2. Defensive Asylum: Individuals who are in removal proceedings before the Executive Office for Immigration Review (EOIR), which is part of the Department of Justice, can apply for asylum as a defense against deportation.

   • Application in Removal Proceedings: The applicant still files Form I-589 with the Immigration Court.
   • Hearing Before an Immigration Judge: The asylum claim will be heard by an immigration judge during a hearing. The applicant will have the opportunity to present evidence and testimony in support of their claim, and government attorneys may present evidence against the claim.
   • Credibility Assessment: The immigration judge will also assess the applicant’s credibility.
   • Decision: The immigration judge will issue a decision either granting or denying the asylum application. If denied, the applicant may have the right to appeal to the Board of Immigration Appeals (BIA) and potentially to the federal courts.

Eligibility Requirements for Asylum:

To be eligible for asylum in the United States, an individual must meet several key requirements:

• Meet the Definition of a Refugee: As outlined above, the applicant must demonstrate past persecution or a well-founded fear of future persecution based on one of the five protected grounds. This fear must be credible and have an objective basis.
• Physical Presence in the United States: The applicant must be physically present in the United States or at a port of entry.
• Application Deadline: Generally, the application must be filed within one year of the applicant’s last arrival in the U.S., unless an exception applies.
• Not Subject to Mandatory Bars to Asylum: There are certain mandatory bars that prevent an individual from being granted asylum, even if they meet the definition of a refugee. These bars include:
  • Persecution of Others: If the applicant has ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.
  • Certain Criminal Convictions: Conviction of an aggravated felony.
  • Serious Nonpolitical Crime Outside the U.S.: Committing a serious nonpolitical crime outside the United States prior to arrival.
  • Danger to U.S. Security: If there are reasonable grounds for regarding the applicant as a danger to the security of the United States.
  • Terrorist Activity: Engaging in terrorist activity.
  • Failure to Apply Within One Year (without exception): Failing to file the asylum application within one year of arrival and not meeting the criteria for an exception.
  • Firmly Resettled in Another Country: If the applicant was firmly resettled in another country before arriving in the U.S.

Rights and Benefits of Asylees in the United States:

Individuals granted asylum in the United States have certain rights and are eligible for various benefits:

• Right to Remain and Work: Asylees are authorized to live and work in the United States. They can apply for an Employment Authorization Document (EAD).
• Social Security Number: They are eligible to apply for a Social Security number.
• Path to Lawful Permanent Residence (Green Card): Asylees are generally eligible to apply for lawful permanent resident status (Green Card) after one year of being granted asylum and maintaining that status.
• Family Reunification: Asylees may be eligible to petition for certain family members (such as spouses and unmarried children under the age of 21) to join them in the United States.
• Access to Certain Public Benefits: Asylees may be eligible for certain federal and state public benefits.

Important Considerations:

• Credibility: As with refugee claims, the credibility of the applicant’s testimony and supporting evidence is paramount in asylum cases.
• Legal Representation: Seeking legal representation from an experienced immigration attorney is highly recommended for asylum applications, whether affirmative or defensive.
• One-Year Filing Deadline: The one-year filing deadline is a critical aspect of asylum law, and applicants must be aware of and comply with it or demonstrate that an exception applies.
• Changing Circumstances: Applicants may present evidence of changed circumstances in their home country or their personal circumstances that have created a well-founded fear of persecution, even if the one-year deadline has passed.
• Extraordinary Circumstances: Applicants may also present evidence of extraordinary circumstances that caused a delay in filing their asylum application beyond the one-year deadline.

Interview Scheduling for Affirmative Asylum

When you file Form I-589, Application for Asylum and Withholding of Removal, with U.S. Citizenship and Immigration Services (USCIS) and you are not currently in removal proceedings before an immigration judge, you are pursuing affirmative asylum. The next crucial step in this process is the asylum interview. This page provides detailed information about how USCIS schedules these interviews and what you can expect during this phase.

How USCIS Schedules Affirmative Asylum Interviews:

USCIS strives to schedule asylum interviews in a timely and efficient manner. The scheduling process generally follows these steps:

1. Receipt of Application: Once USCIS receives your Form I-589, it will be date-stamped, and you will receive a receipt notice confirming that your application has been received. This receipt notice is important as it serves as proof of your pending asylum application.

2. Initial Review and Data Entry: USCIS will review your application for completeness and enter the necessary information into their processing systems.

3. Background Checks: Your biographic information (name, date of birth, etc.) will be used to initiate background checks with various law enforcement and intelligence agencies. These checks are a standard part of the security screening process.

4. Interview Scheduling: Asylum interviews are generally scheduled based on the date your Form I-589 was received. USCIS aims to prioritize interviews for more recently filed cases, in accordance with processing priorities established by the agency. However, various factors can influence the scheduling timeline, including the volume of applications received by a particular asylum office, the availability of asylum officers, and the complexity of individual cases.

5. Interview Notice: USCIS will send you a written notice in the mail to the address you provided on your Form I-589. This interview notice will contain critical information, including:

   • Date and Time of the Interview: It is crucial to note the scheduled date and time carefully.
   • Location of the Asylum Office: The notice will specify the USCIS Asylum Office where your interview will take place. You are generally scheduled for an interview at the office that has jurisdiction over your current address.
   • Required Documents: The notice will list any documents you are required to bring to the interview. This typically includes your original identification documents, any travel documents, copies of the evidence you submitted with your application, and any additional evidence you have gathered since filing.
   • Information about Interpreters: If you are not fluent in English, you are responsible for bringing a qualified interpreter to your interview. The interpreter must be proficient in both English and your native language and must be at least 18 years old. Family members or friends are generally discouraged from acting as interpreters to ensure impartiality and accuracy.

6. Rescheduling an Interview (if necessary): USCIS understands that unforeseen circumstances may sometimes prevent you from attending your scheduled interview. If you have a legitimate reason for needing to reschedule, you must notify the Asylum Office as soon as possible, preferably in writing, before the scheduled interview date. You will need to provide a credible explanation for your inability to attend. USCIS has the discretion to reschedule interviews on a case-by-case basis. Failure to appear for your interview without prior notification and a valid reason could result in the denial of your asylum application.

What to Expect Before Your Affirmative Asylum Interview:

• Review Your Application and Evidence: Thoroughly review your Form I-589 and all the supporting documents you submitted. Ensure you are familiar with the details of your claim and can clearly articulate the reasons for your fear of persecution.
• Gather Additional Evidence (if any): If you have obtained any new evidence since filing your application that supports your claim, make sure to gather it and be prepared to present it at the interview.
• Arrange for an Interpreter (if needed): If you are not fluent in English, make arrangements to bring a qualified interpreter who is not a family member or friend. Ensure the interpreter understands the importance of accurate and impartial translation.
• Prepare for Potential Questions: Anticipate the types of questions the asylum officer may ask you about your background, your experiences in your home country, and the reasons for your fear of persecution. Practice articulating your story clearly and concisely.
• Understand the Role of Your Attorney (if you have one): If you are represented by an attorney, they will typically attend the interview with you. They can help you understand the process, prepare your testimony, and ensure your rights are protected.

What to Expect During Your Affirmative Asylum Interview:

• Oath or Affirmation: The asylum officer will begin by administering an oath or affirmation, requiring you to promise to tell the truth during the interview.
• Identity Verification: The officer will verify your identity and ask for your biographical information.
• Questions About Your Application: The majority of the interview will focus on the details you provided in your Form I-589 and the reasons for your fear of persecution. The officer will likely ask follow-up questions to clarify certain points and delve deeper into specific incidents.
• Presentation of Evidence: You will have the opportunity to present any additional evidence you have brought to the interview.
• Opportunity for Clarification: You (and your attorney, if applicable) will likely have an opportunity to clarify any points or provide additional information at the end of the interview.
• Next Steps: The asylum officer will generally explain the next steps in the process, although they will likely not provide a decision at the time of the interview.

After Your Affirmative Asylum Interview:

• USCIS Review: The asylum officer will review all the information and evidence presented during the interview and in your application. They may also conduct further research, such as reviewing country conditions information.
• Decision: USCIS will issue a decision on your asylum application in writing and mail it to your address of record. Decisions can be:
  • Approval: Your asylum application is granted.
  • Referral: Your case is referred to an immigration judge for further review in removal proceedings (this typically happens if certain bars to asylum may apply or if there are complex legal issues).
  • Denial: Your asylum application is denied. If you are not in valid immigration status, you may be placed in removal proceedings.
• Appeal or Further Action: If your application is denied, you may have options for appeal or further action, depending on your specific circumstances. The denial notice will typically explain these options.

Asylum Merits Interview After Credible Fear

If you were placed in expedited removal proceedings and an asylum officer determined that you have a credible fear of persecution or torture, your case may proceed in one of two ways:

1. Referral to USCIS for an Asylum Merits Interview: In certain circumstances, particularly for individuals who are not subject to mandatory bars to asylum and whose cases are deemed suitable for further review by USCIS, your asylum application may be retained by USCIS. You will then be scheduled for a second interview, known as an Asylum Merits Interview, with a USCIS asylum officer.

2. Issuance of a Notice to Appear (NTA) before an Immigration Judge (IJ): In other cases, after a positive credible fear determination, USCIS may issue you an NTA, placing you in full removal proceedings before an immigration judge with the Executive Office for Immigration Review (EOIR). In this scenario, you would pursue your asylum, withholding of removal, and Convention Against Torture (CAT) protection claims before the IJ.

What Happens After a Positive Credible Fear Determination and Referral to USCIS?

• Your Credible Fear Record as Your Asylum Application: The written record of your positive credible fear determination (Form I-870, Record of Determination/Credible Fear Worksheet) will generally be treated as your asylum application with USCIS. You typically do not need to file Form I-589 at this stage with USCIS.

• Scheduling the Asylum Merits Interview: USCIS will send you a notice informing you of the date, time, and location of your Asylum Merits Interview. This notice will also provide instructions on what to bring to the interview.

• Purpose of the Asylum Merits Interview: The purpose of this interview is for a USCIS asylum officer to conduct a full review of your asylum claim. The officer will inquire in detail about your background, your experiences in your country, the reasons for your fear of persecution or torture, and any other relevant information to determine your eligibility for asylum, withholding of removal, or protection under CAT.

• What to Bring to Your Asylum Merits Interview: You will generally be required to bring:

  • A form of identification (e.g., passport, other travel or identification documents, Form I-94 if you received one).
  • Originals and copies of any birth certificates, marriage certificates, or other documents establishing your relationship to any family members included in your claim.
  • A copy of your credible fear determination record (Form I-870) and copies of any additional materials you previously submitted.
  • Any additional documents or evidence that support your claim and that you have not yet shared with USCIS. This is a crucial opportunity to provide further details and corroborating evidence.
  • Certified English translations for any documents not in English.
  • Your spouse and any unmarried children under 21 who are included in your asylum application. They must also bring any relevant identity or supporting documents.

• Submitting Additional Evidence Before the Interview: If you have additional information or evidence to supplement your claim, you should submit it to the asylum office before your scheduled interview. Specific deadlines for submission may apply (e.g., no later than 7 calendar days before if submitting in person, or postmarked no later than 10 calendar days before if submitting by mail).

• The Asylum Merits Interview Process:

  • You will be placed under oath.
  • The asylum officer will ask you detailed questions about your claim for asylum, withholding of removal, and CAT protection.
  • You will have the opportunity to explain the harm you suffered in the past and the harm you fear in the future.
  • The officer may also ask about conditions in your home country.
  • The interview will be recorded, and the officer will take written notes.
  • You have the right to have a legal representative (attorney or accredited representative) present at your interview, provided it does not unreasonably delay the process.
  • If you are not fluent in English, you must bring a qualified interpreter who is not a family member or friend.

• Processing After the Asylum Merits Interview: After the interview, the asylum officer will review all the information and evidence. USCIS will then make a determination on your eligibility for asylum, withholding of removal, and CAT protection based on the record before them.

• Possible Outcomes:

  • Grant of Asylum: If USCIS determines that you meet the legal requirements for asylum, your application will be approved.
  • Denial of Asylum: If USCIS determines that you do not meet the legal requirements for asylum, your case will likely be referred to the Immigration Court for further review in removal proceedings. You will then have the opportunity to present your case to an immigration judge.
  • Withholding of Removal or CAT Protection: Even if you are not granted asylum, USCIS may determine that you are eligible for withholding of removal (meaning you cannot be deported to a country where your life or freedom would be threatened) or protection under CAT (meaning you cannot be deported to a country where it is more likely than not you would be tortured).

• Failure to Appear for the Interview: Failing to appear for your Asylum Merits Interview without exceptional circumstances can have serious consequences, potentially affecting your eligibility for employment authorization and potentially leading to removal proceedings.

Key Differences from Affirmative Asylum:

It’s important to note that the Asylum Merits Interview process following a positive credible fear determination is distinct from the affirmative asylum process, where individuals who are not in removal proceedings proactively file Form I-589 with USCIS. In the Merits Interview context, the credible fear record serves as the initial application.

Conclusion

The complexities of the asylum process, especially after a positive credible fear determination and leading up to the Asylum Merits Interview with USCIS, can be challenging and fraught with uncertainty. To ensure you are fully prepared, understand your rights and obligations, and present your case effectively, consider reaching out to “L for Law.” Our experienced team specializes in asylum law and can provide you with personalized guidance, thorough preparation for your interview, and expert legal representation to navigate this critical stage. Contact us today for a consultation and take the first step towards securing your protection.