The asylum process in the United States is intricate and time-consuming, often leading applicants to miss crucial filing deadlines or fall prey to unlicensed attorneys due to their unfamiliarity with U.S. immigration law. As a news organization dedicated to serving immigrants, Documented interviewed Lenni Benson, Distinguished Professor of Immigration and Human Rights Law at New York Law School, to address common legal inquiries and potential pitfalls.
It’s essential to note the various avenues for seeking asylum in the U.S., as outlined in our article “How to Seek Asylum in the United States.” This piece specifically caters to individuals facing deportation proceedings following an arrest for improper entry into the country without documentation. Please note that the information provided is not legal advice, and individuals should consult with an immigration lawyer for personalized guidance.
Also Read: How to Apply for Asylum in the United States
How long does the asylum process take?
Benson highlights that asylum seekers may encounter extensive waiting periods due to substantial backlogs in both the asylum office and immigration courts. While expeditious processing is ideal, USCIS asylum offices are currently prioritizing cases from Afghanistan, meaning applicants from China and other countries could face waiting times ranging from three to seven years before interview notifications.
Benson notes that many individuals apprehended at the southwest border and placed into removal proceedings receive a notice to appear indicating their court and hearing date. However, when they attempt to confirm this information via the website of the Executive Office for Immigration Review (EOIR) or via phone, the court may have no record of their case. This issue arises due to the complexity of jurisdictional matters and the separation between asylum offices and immigration courts, leading to uncertainty about addressing such discrepancies.
Benson emphasized that the applicant must submit their application within one year after their last entry into the United States and still be proactive in ensuring they meet all necessary deadlines, as relying solely on the court’s notification may lead to missed opportunities. The absence of a lawyer or the lack of notification of a court appearance will not be accepted as an excuse for not filing an asylum application.
When can I expect to receive my work permit after submitting my asylum application?
Filing for asylum doesn’t automatically grant eligibility for a work permit; there’s a waiting period of 150 days after filing before you can apply for one. Even after submitting the application, it may take several weeks or months to receive a reply.
Benson explains that during this waiting period, the USCIS worker responsible for issuing the work permit may be awaiting approval from the immigration court. This is because, according to regulations, if there’s a delay or rescheduling of your deportation or court hearing, your 180-day Asylum EAD clock, is put on hold. EAD clock measures the time the Form I-589, Application for Asylum and Withholding of Removal (asylum application), has been pending either with U.S. Citizenship and Immigration Services (USCIS) and/or an immigration court with the EOIR. Dealing with bureaucracy becomes especially challenging when your case is stuck, Benson explained.
Based on Benson’s interviews with chief clerks in major immigration courts like those in New York City and Chicago conducted several years ago, it was found that 25 percent of their time was dedicated to addressing complex issues related to asylum work authorization. Even with legal representation, applicants may still spend hours or weeks clarifying matters.
While work authorization is essential, Benson emphasizes that the work permit is secondary to the asylum application itself. Congress designed the slowdown of the work permission to incentivize people to comply with the court process rather than using it as a delay tactic. However, with the influx of asylum seekers from Afghanistan, Ukraine, and the southwestern border, government agencies struggle to keep up with the workload, making it even more difficult to process asylum cases efficiently.
What are asylees entitled to?
According to the Administration for Children & Families, asylees may be entitled to certain federal “mainstream” (non-ORR-funded) benefits, such as cash assistance through Temporary Assistance for Needy Families (TANF) or Supplemental Security Income (SSI), health insurance through Medicaid, and food assistance through Supplemental Nutrition Assistance Program (SNAP). Read this article for more details.
Red flags in asylum seekers’ applications
Some asylum seekers may seek assistance from social service workers when filing their asylum claims. However, Benson warns that despite good intentions, there’s a risk of misinformation if these workers lack sufficient training. Often, individuals may pay someone to assist with completing their application forms, but these helpers may not be practicing lawyers.
Anyone helping an asylum seeker fill out an application must sign the form as a preparer. This measure aims to prevent scams during the application process. Benson emphasizes, “If someone fills out a form for you but won’t sign it, it’s an important warning. That person is unwilling to take responsibility, and while the applicant may be desperate for help, it’s not a good sign.”
What makes the judge believe you’re telling the truth in an asylum claim?
Simply put, state the truth, and be yourself. Being truthful and authentic is key, as highlighted by Benson referencing the documentary “Well-founded Fear.” Officials in the film noted that credibility isn’t solely based on flawless recollection, as trauma or fear can impact memory. Although some people might rely on journals or records to remember details, appearing articulate and well-prepared doesn’t always ensure credibility. It can give the impression that they’re reciting a script rather than sharing their authentic experience. Nervousness or rehearsed presentations can affect how one appears in court, where both attorneys and judges may question applicants. Judges may scrutinize details during proceedings, highlighting the need for accurate information.
Also Read: Credible Fear Interview: A Critical Step in the Asylum Process
According to Benson, the court places a high standard on consistency in an applicant’s story, often unnoticed by the applicants themselves. Having a knowledgeable companion, such as an attorney or friend, can help address concerns and provide clarity during questioning. “There’s no secret to sounding credible, except for one thing, the truth,” said Benson. “If you don’t remember, say you don’t remember. If you don’t know who attacked you on the street, say you don’t know who the person who hit you was.” She notes that asylum seekers should understand that the idea that judges want to hear a particular version of the truth, or a doctored, carefully crafted version of the truth, is not true, and could instead work against them.
What is credible fear?
Under immigration law, credible fear is used as a lower standard for determining if the applicants are going to be expeditiously removed. During a credible fear interview, the asylum officer will typically ask what has happened to you, what you fear will happen to you, who (be it a government or non-government controlled group) poses a threat to you, and why they are motivated to persecute you.
Benson advises applicants to read the USCIS regulations, which contain a lot of important information, before conducting a credible fear interview at the asylum office. She points out that credible fear is a criteria for asylum officers to use in conducting the interview, but it is not the complete asylum interview. If you do not pass the credible fear interview, you have not met the lower standard for obtaining asylum and may be immediately deported and barred from entering the U.S. for the next five years. In some ways, this is the equivalent of a lifetime ban on entering the United States because it is difficult to overturn and makes it difficult for you to get another visa to come to the United States.
If you fail the credible fear interview, your options to challenge the decision are limited. You can request a review by an immigration judge, but legal representation during the process may not be guaranteed. The judge will review the documents submitted by the asylum officer and may allow you to provide additional information.
Also Read: What Happens if You Don’t File for Asylum Before the One Year Deadline?
Benson explains that persecution lacks specific definitions and can include threats to safety, such as physical harm, arrest, imprisonment, and sexual assault. However, actions like property confiscation by the government may not automatically qualify as persecution. Applicants must demonstrate a connection between their experiences and factors like political opinions or religious beliefs.
Establishing these connections can be challenging, and hardships like ordinary crime or discrimination may not qualify for asylum. Skilled attorneys and experts often conduct extensive research to understand the socio-political context behind the experiences and establish a link to grounds for protection.
What is the difference between credible fear and reasonable fear?
Simply put, the credible fear interview is a screening process that asks questions to establish whether applicants will likely be persecuted if they return to their home country. Reasonable fear interviews, on the other hand, are more challenging to win and only result in the possibility of obtaining withholding of removal, not asylum.
Individuals facing deportation due to aggravated felonies or reinstated removal orders must undergo reasonable fear screenings. If their claims are deemed valid by the asylum officer, they become eligible for withholding of removal. To qualify, applicants must demonstrate a reasonable possibility of persecution or torture if returned to their home country. Similar to credible fear, there are no mandatory bars for reasonable fear candidates. Read this article for more details.
What if I miss the deadline for filing an asylum application within one year of entering the U.S.?
If you miss the deadline due to a lack of understanding of U.S. law, you are likely to lose the opportunity to apply for asylum. However, if extenuating circumstances such as mental or physical health issues prevent you from filing on time, the judge may grant an exception, provided you present a medical evaluation from a licensed professional, such as a physician, psychiatrist or social worker.
Alternatively, if you can demonstrate that you are at risk of persecution or torture upon return to your home country, you may apply for a withholding of removal under the Convention Against Torture (CAT), which offers protection to individuals. While this allows you to apply for a work permit, it does not grant permanent residency or citizenship. Moreover, individuals granted a CAT stay cannot petition for relatives. However, if you later marry a U.S. citizen, there may be potential for your case to be reopened in the future.
When can I apply for citizenship after asylum?
According to USCIS, in general, after a certain number of years as a lawful permanent resident, you can apply for naturalization. Refugees and asylees may apply for naturalization 5 years after the date of their admission to lawful permanent residence. Asylees are admitted to lawful permanent resident status as of the date 1 year before the approval of their Form I-485. Upon the approval of their Form I-485, refugees are admitted to lawful permanent residence as of the date of their arrival in the United States.
How do I find a reliable immigration attorney?
It is natural for people to want to find immigration lawyers who speak their language or to find lawyers through word of mouth. However, Benson advises that people should be vigilant in their search for a lawyer rather than taking advice from unlicensed lawyers. Previously, there have been cases where Chinese immigration attorneys have falsified applicants’ backgrounds and fabricated the same story for multiple applicants, resulting in failed applications. Applicants can check through public records to find immigration lawyers with a high win rate. For example, you can get the help of a friend who knows English. By accessing the Board of Immigration Appeals cases, individuals can identify attorneys who have achieved favorable outcomes on appeal. Additionally, the American Immigration Lawyers Association (AILA) website offers a “Find a Lawyer” tool. Selecting “English” as the preferred language in “Find a Lawyer” yields more options than choosing “Chinese” exclusively. Benson emphasizes that attorneys experienced in asylum cases can collaborate effectively with interpreters to navigate language barriers. Additionally, seasoned immigration attorneys are also well-acquainted with the preferences of immigration judges and can provide you with invaluable insights.
