Law Offices of Antone & Casagrande, P.C.

---

HomeAttorneysEmail UsPractice AreasCareersSitemapOur Blog     

 

Asylum & Refugee Status

Under U.S. law, asylum status and refugee status are different but closely related.  Asylum is the status applied for by a person already in the United States, and is handled by the U.S. Citizenship and Immigration Service (USCIS) or by an Immigration Judge. Although not required, the assistance of an immigration attorney can be quite helpful in the preparation and defense of an asylum application.  Refugee status, on the other hand, is applied for and granted outside the United States. More information about the refugee application and admission process can be found below.

Asylum

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 (to obtain a green card) after being present in the U.S. for one year after he or she is granted asylum.  There is no fee to file for asylum.  One may apply for asylum regardless of immigration status, meaning that someone may apply even if they are in the United States illegally.  An asylum-seeker must apply for asylum within one year of arriving in the United States.  This is a strict deadline that must be considered.  Only in very rare circumstances can one successfully apply for asylum after the one-year deadline has passed.  

To qualify for asylum, an applicant must show that he or she meets the definition of “refugee.”  A refugee is defined as someone who is outside his or her country of nationality 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.”  That is, if someone in the United States is afraid to return home because he or she has been harmed (persecuted) or has a well-founded fear that he or she will be harmed (persecuted) because of his or her political opinions or religious beliefs, or for the other three grounds listed, he or she may be considered a refugee and may be granted asylum.

To apply for asylum, one can file an application with the U.S. Citizenship and Immigration Service (USCIS) or ask for asylum at a 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 the application.  For those who request asylum at a port-of-entry, they may be detained by immigration for the first stage of the application process.

Even if an applicant does not qualify for asylum, the government will also automatically consider whether it will refrain from deporting, or removing, him or her.  This is called Withholding of Removal. An asylum applicant may request that the government also consider granting protection under the Convention Against Torture.

Eligibility for asylum is based on information provided on the application and during an interview with an Asylum Officer or an Immigration Judge.  If an applicant has been placed in removal (deportation) proceedings in Immigration Court, 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 also decide on removal if an applicant is found ineligible for asylum and is illegally in the United States.  If an applicant is in valid immigrant or nonimmigrant 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.  Often, a case will be referred to a local Immigration Court, in which case the applicant is then provided the opportunity to produce more detailed evidence of the claim and may be represented by an attorney.

If an asylum applicant wants to travel outside the United States while his or her case is pending, the applicant must receive advance permission before leaving in order to return to the United States.  This advance permission is called Advance Parole.  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 may be difficult, and this should be carefully reviewed prior to travelling.

Refugee Status

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.  Most recently, the total cap has been set around 80,000.  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 fall under 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 website here.

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 at http://www.unhcr.org/.

We may be able to assist you if you believe you are eligible to apply for asylum or refugee status.