Asylum is an immigration benefit that allows certain foreign nationals who fear persecution to remain lawfully in the U.S. indefinitely. People who are granted asylum may apply for lawful permanent residence (a green card) one year after being granted asylum. With some exceptions, an asylum application generally must be filed within one year of the applicant’s last entry into the U.S.
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What is Asylum?
Who may qualify for asylum?
An asylum seeker must prove that he or she has a well-founded fear of persecution based on one or more of five grounds:
- Membership in a particular social group (Most LGBTQ individuals who apply for asylum qualify under this category)
- Political opinion
Can I apply for asylum based on being lesbian, gay, bisexual, transgender, queer or HIV-positive?
Yes, since 1994, United States immigration law has recognized persecution on account of sexual orientation as a basis for asylum. Transgender individuals and HIV-positive individuals have also won asylum cases. Moreover, some people who have engaged in LGBTQ or HIV rights activism in their home country and fear persecution on that basis may be eligible to apply for asylum under a “political opinion” category.
What is persecution?
Persecution is mistreatment that is inflicted either directly by the government, or by individuals whom the government cannot or will not control. The law does not give an exact definition of what persecution is, but generally it is described as more serious than simple harassment or discrimination. Nevertheless, many kinds of mistreatment might rise to the level of persecution, especially if the abuse was frequent over a long period of time.
What are some examples of persecution by the government?
- The police contact gay men on the internet and then arrest them when they come to meet for a date.
- A military officer “helps” a lesbian with a flat tire by picking her up in his jeep, bringing her to a deserted field, and raping her “to show her what a real man feels like.”
- The police raid a gay club, bring several gay men to the local jail, throw them in with the general population, and tell the criminals to “teach these faggots a lesson.”
What are some examples of persecution which the government cannot or will not control?
- A transgender woman is beaten up on the street by a gang, telling her “to act like a man.” When she tries to report the incident to the police, the authorities tell her that if she didn’t dress in women’s clothes this would not have happened.
- The partner of a gay man is killed by a mob of angry neighbors when the two are discovered to be a couple; the surviving gay man is afraid to report the incident to the police because homosexuality is illegal in his country.
Is it possible to win asylum if the applicant has not suffered past persecution?
It is possible, but more difficult, to win a case based on a fear of future persecution. The applicant must document very extensively the way that LGBTQ and/or HIV positive individuals are mistreated in their country and also demonstrate why they reasonably believe that they might be singled out for persecution.
How do I apply for asylum?
Filing for asylum is a very serious decision and you should consult with an attorney before filing. If you file on your own, please keep a copy of every piece of paper you submit for your records. You should also send the application by certified mail (or through a delivery service such as FedEx or UPS) so that you are given a tracking number for the package. This is sometimes the only way to prove that you filed for asylum on time.
The asylum application consists of:
- Immigration Form I-589
- A declaration (detailed personal statement by the applicant)
- Corroborating documents (medical reports, police reports, letters from witnesses, etc.) to back up the applicant’s story
- Country conditions documentation (human rights reports, newspaper articles, reports from expert witnesses) demonstrating how the government treats LGBTQ or HIV-positive people in your country
What happens after the application is filed?
After an application is filed, DHS will issue a receipt notice to let you know that the document was properly filed. If you do not receive a receipt notice, your application may not have been properly filed.
It can be very difficult to estimate the timeline of an asylum application. Due to heavy backlogs at the asylum offices, some applicants may wait months (and sometimes years) to have their asylum interview scheduled. However, some applicants are randomly chosen for much quicker processing times. Please note, the length of time an applicant may have to wait has no real relationship to the strength or weakness of a claim.
For those applications randomly chosen for a quick interview, an individual may expect to be scheduled within about six weeks of mailing in the application. At the interview, applicants generally describes what happened in the past and what they fear may happen in the future if they are returned to their country of origin.
Two weeks after the interview, the applicant generally returns in person to pick up the decision. Less frequently, in some cases the decision may be mailed to the applicant.
The decision will either grant asylum, recommend asylum approval, provide a notice of intent to deny a case, or refer the case to immigration court.
What if asylum is not granted after the interview?
If the applicant is in valid immigration status (tourist, student, etc.) at the time of the asylum office’s decision, he or she will be issued an document called a “Notice of Intent to Deny” or a “NOID.” The applicant is permitted to submit further evidence to the asylum office about why he or she should win the case, but does not have a legal right to ask a judge or an appeals court to review that decision. Most responses to a NOID are not successful in changing the asylum office’s decision. In most cases, a person who is issued a Notice of Intent to Deny is required to leave the country when their authorized stay ends.
If the applicant is not in valid status (visa overstay, entered without inspection etc.), then they will be placed in removal (deportation) proceedings before the immigration court. In removal proceedings, the applicant has a second chance to explain their case to an immigration judge, while an attorney for the government argues that the applicant should be deported. The judge hears testimony from the applicant and their friends and family, reviews evidence, and decides whether or not the person will be permitted to remain in this country.
Unlike the asylum office, an immigration judge has the legal authority to grant other immigration benefits in addition to asylum, such as withholding of removal, Convention Against Torture relief, and in some instances, lawful permanent residence (a green card) for those who qualify. After an immigration judge makes a decision, either the immigrant or the attorney for the government can appeal that decision if they do so within 30 days.
There is always a substantial risk of removal (deportation) when a person files for asylum. Because of the extremely high number of cases that immigration courts hear, it is somewhat common for a person’s case to take years to come to a final resolution.
The One-Year Filing Deadline
What is the one-year filing deadline for asylum ?
In general, asylum seekers must file the asylum application within one year of their last arrival to the U.S. If an applicant misses the one-year filing deadline, their asylum application will be denied unless they meet a legally recognized exception to the deadline.
What are the exceptions to the one-year filing deadline?
Exceptions to the one-year deadline fall into two categories, “changed circumstances” and “extraordinary circumstances.” Even if an applicant meets one of these exceptions, they must still file within a “reasonable period of time,” which is not defined but generally means within a few months after the events that cause the changed or extraordinary circumstances occur.The following is a list of some (but not all) possible “changed circumstances” that may in some instances excuse a delay in filing for asylum.
- The applicant has maintained lawful visa status (such as student, or H1B) since coming to the U.S.
- The applicant did not “come out” as LGBTQ until he or she came to the U.S.
- The government of the applicant’s home country has instituted recent legal or political changes to criminally penalize or prosecute LGBTQ people
- The applicant has taken recent hormonal, surgical, or other gender-affirming transitional steps in the United States to more closely align their physical appearance with their gender identity
- The applicant received a recent HIV or AIDS diagnosis
Examples of “extraordinary circumstances”:
- The applicant suffers from medically documented Post Traumatic Stress Disorder or severe depression as a result of abuse in their country and was consequently unable to file for asylum when they first came to the U.S.
- The applicant consulted with an attorney who committed malpractice and the applicant filed a complaint against the attorney
- The applicant was younger than 18 years of age when they arrived in the United States and filed for asylum shortly after turning 18 (please note that if you are designated as an unaccompanied minor, special rules may apply to your case even if you are over 18)
So how does a person decide whether or not to file for asylum?
The decision to file for asylum is a very serious one that can carry with it tremendous consequences. If the applicant is granted asylum, they will no longer be undocumented and will have a secure legal status in the U.S. Asylum provides a pathway to citizenship that is somewhat uncommon in U.S. immigration law. However, if the applicant is not granted asylum, they may be deported to the country where they fear persecution or torture.
Anyone considering filing for asylum should consult with an attorney with experience in these types of cases to get as much information as possible before making a decision. No one can tell with certainty whether or not a particular asylum case will be successful, but an attorney can help you make an informed decision about whether or not to apply.