Under U.S. law, potential asylees and refugees must first satisfy the definition of a “refugee” in order to be considered for asylum or refugee status in the U.S. A “refugee” is defined as: “any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country 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…”
A person who is in the United States or at the United States border applies for asylum with the U.S. Citizenship and Immigration Service (USCIS) or before an Immigration Judge. A person who is outside the United States and outside of their own home country, and who is of special humanitarian concern to the United States, applies for refugee status by obtaining a referral for consideration by the U.S. Refugee Admissions Program with the help of an dedicated immigration attorney. If you are facing persecution in your home country, reach out to one of our Michigan asylum lawyers today.
A person, who is in the United States or at the United States border, and is seeking protection by the United States because they have suffered persecution or fear that they will suffer persecution because of their race, religion, nationality, membership in a particular social group, and/or political opinion, may be eligible to apply for asylum and remain in the United States. An asylum application is filed using Form I-589, Application for Asylum and for Withholding of Removal, within one year of arrival to the United States. There is no fee for applying for asylum. A person may apply for asylum regardless of immigration status, meaning that someone may apply even if they are in the United States illegally.
Generally, the asylum application is filed with the U.S. Citizenship and Immigration Service (USCIS). However, if the applicant is at the border, then they would ask for asylum at the port-of-entry (airport, seaport, or border crossing). An applicant may include his or her spouse and any unmarried children under the age of 21 in an asylum application if the spouse or children are in the United States, or the family members may apply independently if they have their own grounds for an asylum application. For those who request asylum at a port-of-entry, they may be detained by the immigration authorities for the first stage of the application process.
If an asylum applicant wants to travel outside the United States while his or her case is pending, the applicant must receive advance permission in the form of “advance parole” before leaving in order to return to the United States. If one does not apply for Advance Parole before leaving the country, the asylum applicant will abandon his or her application with the USCIS and may not be permitted to return to the United States. If the application for asylum is approved, the applicant may apply for a “Refugee Travel Document;” however, travel to certain countries, including the country of persecution, may cause difficulties, and any travel plans should be carefully reviewed with an asylum attorney prior to traveling.
While an asylum application is pending, the applicant may apply for employment authorization but only after 150 days have passed since they filed their asylum application, excluding any delays caused by the applicant, and provided no decision has been made on the asylum application. If an applicant is granted asylum, he or she will be allowed to live and work in the United States. The applicant will also be able to apply for permanent resident status (a “green card”) after being present in the U.S. for one year after he or she is granted asylum.
Even if an applicant does not qualify for asylum, the immigration authorities will consider whether it will refrain from deporting, or removing the applicant, through a grant of “Withholding of Removal,” if it is determined that the applicant has shown a clear probability that his or her life or freedom would be threatened in the country directed for deportation on account of race, religion, nationality, membership in a particular social group or political opinion. In addition, an asylum applicant may request that the immigration authorities consider granting protection under the “Convention Against Torture,” if the applicant is able to show that it is “more likely than not” that he or she would be tortured, if they return to their home country. The torture must be inflicted “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” “Acquiescence” requires that the public official have prior awareness of the activity and “thereafter breach his or her legal responsibility to intervene to prevent such activity.”
Eligibility for asylum is based on the application, supporting documentation, and an interview with an Asylum Officer or an Immigration Judge. If an applicant has been placed in removal (deportation) proceedings they must appear at Immigration Court, and an Immigration Judge will hear and decide the case. If the applicant applies directly to the USCIS, an Asylum Officer will interview the applicant and decide whether he or she is eligible for asylum. Asylum Officers will grant asylum, deny asylum, or refer the case to an Immigration Judge for a final decision. If an Asylum Officer finds the applicant ineligible for asylum and that he or she is in the United States illegally, the Asylum Officer will place the applicant in removal proceedings and refer the application to an Immigration Judge for a final decision. Immigration Judges may order an asylum applicant removed from the U.S. if an applicant is found ineligible for asylum and is illegally in the United States. If an applicant is in valid status and the Asylum Officer finds that he or she is not eligible for asylum, the Asylum Officer will send a notice explaining that the USCIS intends to deny the request for asylum. The applicant will be given a short period of time to respond to the doubts raised by USCIS and explain why the application should be approved before a decision is made on the application. When a case is referred to a local Immigration Court, the applicant is provided an opportunity to produce more detailed evidence of the asylum claim and may be represented by an immigration attorney.
Refugee status may be granted to people who meet the definition of “refugee,” described above, but who are outside the United States and therefore ineligible for asylum. Determination of refugee status for admission or resettlement to the United States is governed by the same legal principles and standards as asylum, but unlike asylum, there is a strict limit on the number of people that can be accepted into the United States as refugees. Each year, the United States government sets a cap for the number of refugees it will accept from each continent. The United States has also established a tiered system of “refugee processing priorities,” indicating specific countries and circumstances that are regarded as high priority under United States refugee law.
Generally, a person must apply for refugee status in a third country after escaping from his or her country of origin and show there is sufficient need for an interview to determine refugee status. Applicants who believe that they may be eligible for resettlement in the United States should make their interest known to the nearest United Nations High Commissioner for Refugees (UNHCR). Applicants who fall within the United States refugee processing priorities will be eligible for an interview. The application is processed through the United States Refugee Admissions Program (USRAP) in several countries throughout the world. For additional information about the USRAP program and locations, click here.
Applicants bear the burden of proving that they are eligible for refugee status and there is no administrative appeal of a denial. To be resettled as a refugee in the United States, applicants must show that they are not already “firmly resettled” in a third country and that they meet the standard of “refugee” under international law. Other requirements, such as a medical examination and proof of employment or support in the United States or relevant family connections may also be necessary, depending on the situation.
The United States has a three-tier priority system for processing refugees. First priority refugee applicants are those referred to USRAP by the United Nations High Commissioner for Refugees (UNHCR), a United States Embassy, or a designated non-governmental organization (NGO). The second priority is reserved for groups of peoples that have been recognized as a “special concern” by the United States. Third priority refugees are those from certain countries who are designated family members of people lawfully residing in the United States. A description of eligible refugees for the second and third priorities is available on the USCIS.
If applicants know they are not eligible under the second priority description, they should contact the UNHCR for guidance immediately upon escaping their country of origin, because the United States treats refugees recognized by the UNHCR as first priority. As an example, the UNHCR has recognized that Chaldeans in Iraq currently face severe persecution and it has urged countries to take action to protect them as refugees. Therefore, Chaldean refugees may be treated as first priority refugees if they first contact and obtain the support of the UNHCR. Information on the UNHCR is available at their website. Our Michigan lawyers may be able to assist you if you believe you are eligible to apply for asylum or refugee status. Reach out today to learn more.