What You Need to Know About Seeking Asylum in the United States

The rules and laws for seeking asylum in the United States have always been complex, but the situation has become even more fraught and confusing over the last year. Recently, the news has been filled with reports of the Trump administration’s new “Zero Tolerance” immigration policy, followed by shocking images of children taken from their parents and housed in government facilities. What do all of these changes mean for you if you face a serious threat in your home country and wish to request asylum in the United States? Let’s review the basics of the U.S. asylum system and then look at what current and potential changes announced by the Trump administration may mean for your asylum claim.

1.      Does the United States Offer Asylum to Foreign Nationals?

We live in a world where many people across the globe face serious threats of violence or even death due to their race, religion, political beliefs, and other factors. In response, the United States offers asylum to foreign nationals who face specific persecution in their home countries. It is not easy to obtain asylum – especially in today’s current political environment – but it can be done. If your asylum request is granted, you will be allowed to settle permanently in the United States. If your request is denied and your appeals are unsuccessful, then you may be deported back to your home country. The foundation for the United States Asylum Program can be found in the Immigration and Nationality Act.

2.      What Standards Do I Have to Meet to Be Granted Asylum?

You cannot receive asylum just because you do not want to return to your home country or even if you face certain threats to your life and wellbeing. Current U.S. law only grants asylum if you can make a reasonable claim that you would face (or have faced) serious persecution in your home country based on your:

  • Race
  • Religion
  • Nationality
  • Political Opinion
  • Membership in a particular social group

Each of these categories is somewhat flexible and can be used to support a variety of claims. For example, gang violence is a very serious issue in many Central and South American Countries, and many foreign nationals fleeing this violence have previously used the “Membership in a particular social group” category to request asylum, claiming that they face violence or even death from gangs if they return to their country. New updates made by the current administration have made this type of asylum claim much more difficult to make.

3.      How Do I Request Asylum?

You can request asylum at any port of entry into the United States, including at a border crossing, at the airport, or at a seaport. You must physically be present at a U.S. border to request asylum. Alternatively, you can also request asylum if you are already in the country. In most cases, you can only request asylum if you have been in the country for a year or less, unless you can show that your situation has newly changed, which has made your asylum request necessary.

To actually request asylum, you will need to complete Form I-589, the Application for Asylum and for Withholding of Removal. If you are presenting yourself at the border, let the border agent know that you are requesting asylum, and he or she will direct you to the proper resources. If you are already in the country, it is a good idea to seek the assistance of an experienced immigration attorney to help you with your asylum claim.

4.      Can I Request Asylum for My Family Members?

You can request asylum for yourself, as well as your spouse and any children under the age of 21 who are unmarried. If your children are over the age of 21 or if they are married, they will need to request asylum separately. All other family members, including your parents, siblings, aunts, and uncles will need to submit separate asylum requests.

To request asylum on behalf of yourself and your qualifying family members (your spouse and minor children), they must also be present at a U.S. border or already in the country. They will also need to accompany you to your asylum interview.

Be aware that if you include your spouse and children in your asylum request and you are granted asylum, they will also receive asylum. However, if your asylum request is denied, their asylum request will also be denied, and you will all be referred to immigration court.

If your spouse and/or children are not with you in the United States and you have received asylum, you can petition to bring them to the United States to be included in your asylum request. To do this, you will need to fill out form I-730, Refugee/Asylee Relative Petition.

5.      What Happens If My Asylum Request Is Not Granted?

If your asylum request is not granted by the office of U.S. Citizenship and Immigration Services (USCIS), your case will be forwarded to immigration court for a ‘de novo’ hearing before an immigration judge. This just means that the immigration judge will review your case independently and make a decision on whether or not to grant your asylum request. The de novo hearing is your second chance to make a valid claim for why you meet the requirements for receiving asylum.

If the judge denies your asylum claim, you have the right to appeal the decision. If your appeals are not successful and you are ineligible for any other relief programs, you will likely be legally required to leave the United States and return to your home country.

6.      Can I Request Asylum If I Was Living in the U.S. Illegally and Got Picked Up By ICE?

You can request asylum regardless of your immigration status. If you were caught entering the country illegally or living in the country illegally, you may request asylum as a defense against your removal, but you’ll need to prove that your situation meets asylum standards.

This type of case is known as “Defensive Asylum Processing,” and it will proceed differently than if you had requested asylum directly. Your case will go to immigration court where you will plead your case against an attorney from Immigration and Customs Enforcement (ICE). The judge has the power to grant or deny your asylum request.

7.      Will I Be Charged with a Crime for Crossing the Border to Seek Asylum?

Previously, foreign nationals who entered the United States and requested asylum were not detained or charged for illegally entering the country. Instead, they were allowed to reside in the United States while their asylum case proceeded.

This precedent has recently been turned on its head. In April of this year, Attorney General Jeff Sessions announced a new “Zero Tolerance Policy” toward all forms of illegal immigration across the Mexican border, including those seeking asylum. As a result of this policy, all individuals caught crossing the border illegally are put into criminal proceedings. Even if you have a valid asylum claim, you must be prepared to be detained by the United States government until your case is processed.

8.      Will My Children Be Taken Away from Me When I Cross the Border?

Soon after Attorney General Sessions announced the Trump administration’s new Zero Tolerance Policy, newspapers and news stations started broadcasting stories about children who were being taken away from their parents.

This situation came about because of a legal decision called the “Flores Settlement,” which established that children cannot be detained for more than 20 days. Since the Trump administration was seeking to detain illegal immigrants for more than 20 days, they determined that they must separate the children to abide by the Flores Settlement.

After a significant outcry, President Trump issued an executive order to end family separations in June. Currently, this means that children will no longer be separated from their families, but the Trump administration is now seeking ways around the Flores Settlement so that adults and children may be detained for more than 20 days.

Currently, it seems that parents with children are not being detained and are being allowed to live in the country while their case proceeds. This situation may change at any time.

9.      What Future Changes Will the Trump Administration Make to the Asylum Process?

The Trump administration has shown a willingness to take a hard line on all forms of immigration, including asylum seekers. This was showcased in June of 2018, when Attorney General Jeff Sessions made it much more difficult for victims of domestic violence or gang violence to seek asylum status. This decision alone means that tens of thousands of immigrants may no longer be able to receive asylum in the United States.

The asylum process is more challenging than ever, and the rules could change any day. Make sure you are represented by someone who can help you navigate this difficult system and give you the best change of receiving the asylum you deserve so that you can protect yourself and your family and start a new life in the United States. Contact Saba Law today to be connected with a highly qualified immigration attorney.

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