Federal law found in Title 8 U.S. Code § 1158 establishes that any alien who is physically present in the United States or arriving in the United States, regardless of their status, is able to apply for asylum under this section or Title 8 U.S. Code § 1225(b). Additionally, the United Nations’ 1948 Universal Declaration of Human Rights, the United Nations High Commissioner for Refugees (UNHCR) Refugee Convention of 1951, and the Refugee Act of 1980 also ensure people will not be sent back to places in which they can face persecution, and any person needing help seeking asylum should contact a Los Angeles asylum lawyer.

A person becomes eligible for asylum when they are able to satisfy the definition of refugee under the Immigration and Nationality Act (INA). Under the INA, a refugee is defined as any person who is outside of any country of their nationality or, when a person has no nationality, outside of any country in which a person habitually resided, and is unable or unwilling to avail themselves of their country’s protection because of persecution or a well-founded fear of persecution based on their nationality, religion, race, membership in a particular social group, or political opinion.

How People Can Get Asylum As United States Citizenship and Immigration Services (USCIS) notes, there are three ways an individual can obtain asylum in the United States: an affirmative process, an Asylum Merits Interview following a positive credible fear determination, or the defensive process.

Affirmative Process

An alien must be physically present in the United States to obtain asylum through the affirmative asylum process. A person can apply for asylum regardless of their method of arrival to the United States or their current immigration status.

An alien needs to apply for asylum within a year of their last arrival date in the United States, unless they are able to prove circumstances materially changed and affected their eligibility for asylum or there were extraordinary circumstances relating to a delay in filing and the person still filed within a reasonable amount of time given the circumstances. An alien can also apply for affirmative asylum by submitting Form I-589, Application for Asylum and for Withholding of Removal, to USCIS.

If a person does not file Form I-589 within one year of their arrival in the United States, they might not be eligible to apply for asylum under section 208(a)(2)(B) of the INA. An alien will not need to submit a completed fingerprint card (FD-258) or fingerprint fee when they submit their Form I-589 because USCIS accepts Form I-589 without an attached fingerprint card.

A person is not eligible to apply for asylum if they:

  • Do not follow the one-year filing deadline for Form I-589 (USCIS calculates a deadline from either the date of an alien’s last arrival in the United States or April 1, 1997, whichever is later);
  • Had either an immigration judge or the Board of Immigration Appeals deny their previous asylum application; or
  • Can be removed to a safe third country under a two-party or multi-party agreement between the United States and other countries.

After USCIS receives a completed application, the alien will receive two notices: An acknowledgment of receipt of their application and a notice to visit the nearest application support center (ASC) for fingerprinting. Depending on the location where an alien lives, USCIS schedules them for an asylum officer interview at either a USCIS asylum office or a USCIS field office.

Interview notices contain dates, locations, and times of asylum interviews. The USCIS Asylum Division will schedule asylum interviews in an order of priority that works as follows:

  • 1st priority: Applications that were originally scheduled for an interview but needed to be rescheduled at either the applicant’s request or the needs of USCIS;
  • 2nd priority: Applications that have been pending 21 days or less since filing;
  • 3rd priority: All other pending affirmative asylum applications scheduled for interviews starting with newer filings and working back towards older filings.

Aliens can bring attorneys or accredited representatives to their interviews. They also must bring their spouses and any children who will be seeking derivative asylum benefits.
If an alien cannot proceed with an interview in English, they need to bring an interpreter. Interviews typically last about one hour, although this time can vary depending on case.

An alien has to satisfy the definition of a refugee for them to be eligible for asylum. An asylum officer determines whether an alien will be eligible to apply for asylum, satisfies the definition of a refugee established under INA § 101(a)(42)(A), and is barred from being granted asylum under INA § 208(b)(2).

A supervisory asylum officer must review an asylum officer’s decision to ensure the decision is consistent with the law. The supervisory asylum officer may refer a decision to USCIS headquarters asylum division staff for additional review in some cases.

In most cases, aliens return to asylum offices to pick up decisions two weeks after asylum officers interview them. Longer processing times can be required when aliens are currently in valid immigration status, were interviewed at a USCIS field office, have pending security checks, or have cases that are being reviewed by USCIS headquarters asylum division staff, but USCIS normally mails decisions to aliens in such situations.

If a case does not result in approval and an alien does not have a legal immigration status, USCIS issues a Form I-862, Notice to Appear (NTA), and refers the case to an immigration judge under the Executive Office for Immigration Review (EOIR) in the United States Department of Justice. The immigration judge conducts a de novo hearing of the case, which means they conduct a new hearing and issue a decision that is independent of any decision made by USCIS.

If USCIS does not retain jurisdiction over a case, the asylum office issues a Form I-863, Notice of Referral to Immigration Judge, for asylum-only hearings. When an alien has been previously issued an NTA that either was not filed and docketed with the EOIR immigration court, or a previously issued NTA was filed and docketed with EOIR within 21 days before or after they filed Form I-589 with USCIS, the agency refiles the NTA and sends the form to the immigration court for adjudication.

Aliens are allowed to live in the country while their Form I-589s are pending. Should they be found to be ineligible, they can still remain in the United States while the Form I-589 is pending with an immigration judge.

Asylum Merits Interview For an Asylum Merits Interview, aliens in expedited removal proceedings indicating intentions to apply for asylum, express fears of persecution or torture, or express fears of returning to their countries, may be referred to USCIS for credible fear screenings. USCIS asylum officers conduct credible fear interviews to determine whether aliens have credible fears of persecution or torture.

An alien could receive their credible fear interview while they are in detention. When an asylum officer believes that an alien has a credible fear of either persecution or torture, USCIS can either:

  • Retain the asylum application and schedule an Asylum Merits Interview to determine whether the alien is eligible for asylum. If necessary, an asylum officer may also be able to determine whether an alien is eligible for withholding of removal or protection based on the United Nations Convention Against Torture (CAT) and their record before USCIS; or
  • Issue a Notice to Appear for an EOIR immigration judge to consider the alien’s asylum, withholding of removal, and CAT protection claims. If an alien files Form I-589 and Withholding of Removal with an immigration court, they are placed in the “defensive” asylum process.

When an asylum officer believes that an alien does not have a credible fear of persecution or torture, they can request a review by an immigration judge. If they do not request the review of the determination, Immigration and Customs Enforcement (ICE) may remove the alien from the country.

If an alien fails to request a review of the negative credible fear determination before the immigration judge finds there is a credible fear of persecution or torture and vacates an asylum officer’s negative credible fear determination, then a case could be referred back to and later accepted by USCIS for an Asylum Merits Interview. The alien could also be issued a Notice to Appear before an immigration judge to have their asylum, withholding of removal, and CAT protection claims considered.

When an immigration judge determines that an alien does not have any credible fear of persecution or torture, there will be no further review of an immigration judge’s determination. Only adults and families who are placed in expedited removal proceedings after May 31, 2022, are subject to Asylum Merits Interviews with USCIS following positive credible fear determinations.

Unaccompanied children are not subject to these same procedures because they are statutorily exempt from expedited removal proceedings.

Defensive Process

Defensive applications for asylum happen when aliens request asylum as defense against removal from the United States. An asylum processing becomes defensive when an alien is in removal proceedings in immigration court with the EOIR.

There are generally two ways people can be placed into defensive asylum processing:

  • Referral to an immigration judge by USCIS after they have been determined to be ineligible for asylum at the end of the affirmative asylum process
  • Placement in removal proceedings because they 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 they were apprehended by U.S. Customs and Border Protection (CBP) while trying to enter the United States without proper documentation, placement in the expedited removal process, and they were found to have credible fears of persecution or torture by an asylum officer.

Immigration judges will hear defensive asylum cases in adversarial proceedings. A judge will hear arguments from both an alien and the United States government as represented by an attorney from ICE.

An immigration judge decides whether an alien is eligible for asylum. If the immigration judge finds them eligible, they grant asylum.

If the immigration judge finds them ineligible for asylum, they determine whether the alien is eligible for any other form of relief from removal. If an immigration judge finds them ineligible for other forms of relief, they can order the alien to be removed from the United States, and either party can appeal the immigration judge’s decision.

Call Us Today to Speak with a Los Angeles Asylum Lawyer

Do you need help applying for asylum in the greater Los Angeles area? The Law Office of Todd Becraft understands the most effective ways to handle these cases, so we will be able to help you achieve the most favorable outcome for your particular case.

Our firm works very closely with every person we represent, so you can know that we will be by your side the entire time. Call (213) 388-1821 or contact us online to receive a  consultation with our Los Angeles asylum lawyer.