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You may seek protection and apply for asylum if you have suffered persecution or have fear of future persecution due to:

• Race
• Religion
• Nationality
• Membership in a particular social group
• Political opinion

You may apply for asylum regardless of your immigration status, whether you are in the United States legally or illegally.

You must apply for asylum within one year of your arrival to the United States unless you can demonstrate that there are changed circumstances that materially affect your eligibility for asylum or extraordinary circumstances directly related to your failure to file within one year. You must apply for asylum within a reasonable time given the circumstances. Changed or extraordinary circumstances may include certain changes in the conditions in your country, changes in your own circumstances, and other events. You may include your spouse and children (under the age of 21 and unmarried) who are in the United States on your application.

You may apply for employment authorization if 150 days have passed since you filed your complete asylum application, excluding any delays caused by you (such as a request to reschedule your interview) and no decision has been made on your application.

The two ways of obtaining asylum in the United States are through the affirmative process and the defensive process.

Affirmative Asylum Processing:

To obtain asylum through the affirmative asylum process you must be physically present in the United States and file your Asylum Application to the U.S. CIS. You are authorized to live in the United States while your application is pending.

If U.S. CIS has determined that you are eligible for asylum after it conducted the interview, your status will be changed to asylee, and you may apply for a green card one year after such approval.

If U.S.CIS has determined that you are ineligible for asylum, your case is referred to the Immigration Judge to issue a decision.

Defensive Asylum Processing:

A defensive application for asylum occurs when you request asylum as a defense against removal from the United States. For asylum processing to be defensive, you must be in removal proceedings in immigration court with the Executive Office for Immigration Review (EOIR).

Individuals are generally placed into defensive asylum processing in one of two ways:

They are referred to an Immigration Judge by U.S. CIS after they have been determined to be ineligible for asylum at the end of the affirmative asylum process, or
They are placed in removal proceedings because they were apprehended (or caught) in the United States or at a U.S. port of entry without proper legal documents or in violation of their immigration status or were caught by U.S. Customs and Border Protection (CBP) trying to enter the United States without proper documentation, were placed in the expedited removal process, and were found to have a credible fear of persecution or torture by an Asylum Officer.

The Immigration Judge then decides whether the individual is eligible for asylum. If found eligible, the Immigration Judge will order asylum to be granted. If found ineligible for asylum, the Immigration Judge will determine whether the individual is eligible for any other forms of relief from removal. If found ineligible for other forms of relief, the Immigration Judge will order the individual to be removed from the United States. The Immigration Judge’s decision can be appealed by either party.

While each person’s legal situation is different, there are times when you really should consult with a lawyer you trust.

To schedule a consultation please contact us at (718) 596-8888.