The real process of applying for refugee status and asylum in the United States
FELICIA J. PERSAUD | 6/28/2018, midnight
In the current Trumpian dictatorial atmosphere of rule by executive orders, tweets and dog whistles, there seems to be a determined effort to use the derogatory and inaccurate term “illegal” to describe immigrants arriving at the U.S. border and wishing to apply for refugee status and asylum.
That of course is another effort by this administration to present alternative facts—a “bigly” effort indeed. But here are the facts, according to the U.S. laws and the U.S. Citizenship and Immigration Services guidelines, as laid out on its own website as it relates to refugee and asylum applicants arriving at the U.S. borders.
Although some people use the terms refugee and asylum interchangeably, it’s necessary to note that there are, in fact, distinct differences. They are both considered protections to foreign individuals who feel their safety is in jeopardy if they return to their home countries, but refugee status is for those who are currently outside the United States. Those who arrive at the U.S. ports or are already in the United States, either through a visa or other means, can seek asylum. Both of these options, if approved by the government, would permit an individual to stay in the country indefinitely.
You can apply for asylum at the port of entry in the U.S. or, regardless of your immigration status, within a year of coming to the United States. You cannot apply abroad.
In the United States, there is no fee to apply for asylum. Asylum seekers can list their spouse and all their children on Form I-589, Application for Asylum and for Withholding of Removal.
There are two paths to claiming asylum: Affirmative and Defensive.
To obtain asylum through the affirmative asylum process, an immigrant must be physically present in the United States. An immigrant can apply for asylum status regardless of how the individual arrived in the United States or the individual’s current immigration status.
The immigrant can apply for affirmative asylum by submitting Form I-589, Application for Asylum and for Withholding of Removal, to the U.S. Customs and Immigration Service.
If the case is not approved and the applicant does not have legal immigration status, the applicant will be issued a Form I-862, Notice to Appear, and the case will be referred to an immigration judge at the Executive Office for Immigration Review. The immigration judge will conduct a de novo hearing of the case. That means the judge conducts a new hearing and issues a decision independent of the decision made by USCIS. If the agency does not have jurisdiction over case, the Asylum Office will issue an I-863, Notice of Referral to Immigration Judge, for an asylum-only hearing.
Affirmative asylum applicants are usually rarely detained by U.S. Immigration and Customs Enforcement and can live in the United States while the application is pending before USCIS, unlike what we are seeing now.
Even if the applicant is found ineligible, the applicant can remain in the United States while the application is pending with the immigration judge, even though most asylum applicants are not authorized to work.