The Asylum Process in Immigration Court

Affirmative and defensive asylum are different paths

In the affirmative process, a person generally files Form I-589 with USCIS while not in removal proceedings and may be interviewed by an asylum officer. If USCIS does not grant the claim and the person lacks lawful status, the case may be referred to an immigration judge. In the defensive process, a person in removal proceedings asks the judge to grant asylum as protection from removal.

Some people who pass a credible-fear screening after expedited removal may receive a second asylum merits interview with USCIS; others may be placed in proceedings before an immigration judge. Current routing can depend on the process that applies to the case and may change. A positive screening is not itself an asylum grant.

USCIS: Obtaining Asylum in the United States · Credible-fear process · Removal proceedings

The one-year filing deadline is important

As a general rule, an asylum application must be filed within one year after the person's last arrival in the United States. The law recognizes limited exceptions for changed circumstances that materially affect eligibility or extraordinary circumstances related to the delay. Even when an exception may apply, the application generally must be filed within a reasonable time afterward.

The deadline can be complicated by travel, prior applications, status changes, and other facts. Do not assume that a pending immigration case automatically excuses a late filing. Get individualized legal advice promptly, and follow the filing deadline in the immigration judge's order.

What the judge must decide

The asylum applicant bears the burden to establish eligibility. The claim generally must connect past persecution or a well-founded fear of future persecution to race, religion, nationality, membership in a particular social group, or political opinion. The judge may consider testimony, credibility, corroborating evidence, country conditions, and any legal bars. Meeting the definition does not guarantee a grant because asylum is discretionary and statutory bars may apply.

Withholding of removal and protection under the Convention Against Torture (CAT) are separate forms of protection with different standards. An applicant may request them in the same case, but they do not have all the same benefits as asylum.

Types of relief from removal

Evidence can include more than personal testimony

A clear, detailed account is important. Supporting evidence may include identity documents, medical or police records, messages or threatening letters, witness statements, proof of political or community activity, and records of past harm. If a document is unavailable or unsafe to obtain, explain why.

Country-condition evidence can help explain whether the account fits reliable information about the country and whether protection from government authorities is available. Use current, credible reports and identify how each source relates to your own claim. Translate foreign-language documents and follow court rules for filing exhibits and witness lists.

The hearing and decision

In court, the judge may ask about the application and testimony, DHS counsel may cross-examine, and the judge can question witnesses. Be truthful and say when you do not remember. The judge may issue an oral decision at the hearing or a written decision later. The wait for an interview or hearing can vary widely, and some cases take a long time because of scheduling and case backlogs. If the decision is unfavorable, an appeal generally must be received by the BIA within 30 calendar days; the decision should state the applicable deadline.

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