Asylum Basics

It is important to understand the distinction between a layperson’s terms and a legal definition, as well as between the asylum process and the refugee process.

In layperson’s terms, a refugee is anyone who fled their country because of war or disaster, but when discussing immigration options for people fleeing the war in Ukraine, it is important to understand the distinction between a layperson’s terms and a legal definition, as well as between the asylum process and the refugee process.

“Refugee” vs. “Asylum Seeker”

An “asylum seeker” is anyone who has fled persecution in his/her home country and is seeking safe haven in a different country, but has not yet received any legal recognition or status. A “refugee” is a person who has been recognized in the new country as having fled due to persecution and has been given some sort of legal protection, either by the new country’s government, the United Nations High Commissioner for Refugees (UNHCR) or both. In the United States, a “refugee” is someone who has been registered, processed, and recognized as a refugee overseas, and then brought to this country to reside permanently. An “asylee” is someone who came to the U.S. without official refugee status, (an “asylum seeker”) who has since applied for and been granted legal asylum status by the U.S. government.

Eligibility Requirements for Asylum

In order to win asylum in the United States, an asylum seeker must prove that they have been persecuted, or fear future persecution, on account of race, religion, nationality, political opinion, or membership in a particular social group. The persecutor must go after their victim because of the victim’s personal characteristics.  The persecution must be done by government officials, or if the persecution is done by third-party actors, the government must be unwilling or unable to protect them. War, civil war, or generalized high levels of violence are often not considered to be a basis for asylum because when everyone is in danger, there is not the personalized, particularized persecution generally necessary for an asylum claim.  Every asylum case is very specific and depends on its own facts. Therefore, anyone who wishes to apply for asylum should consult with an experienced immigration attorney about the strengths or weaknesses of their potential asylum claim. 

The One-Year Filing Deadline

Someone applying for asylum in the United States must generally file within 1 year of their arrival to the United States or prove that there were extraordinary circumstances that prevented them from filing earlier, or changed circumstances that gave rise to an asylum claim more than one year after their arrival. Generally, someone applying for asylum in the United States cannot have spent any significant period of time in a third country before coming to the United States; if a person has been safely living in a third country or lived in a country where they could have applied for asylum, the United States does not see why they need asylum here. 

Affirmative vs. Defensive

If someone is not in removal (deportation) proceedings, they file their asylum application directly with U.S. Citizenship and Immigration Services, and they are interviewed by an asylum officer. This is called an affirmative asylum case.  If they are not granted asylum after their interview, removal proceedings in immigration court are opened against them. They will have another opportunity to make their case for asylum in front of an immigration judge. 

If someone is in removal (deportation) proceedings but did not previously have an affirmative asylum case, they must file their asylum application directly with the immigration court. This is called a defensive asylum case. 

Asylees Should Not Return to their Home Country

After someone has been granted asylum, it is not advisable for them to return to their country of origin unless and until they have become a U.S. citizen. An asylum claim is based upon fear of persecution, and return to the home country—unless there have been significant changes in conditions in the country—can undermine the asylum claim and call into question the asylee’s truthfulness during the asylum case and cause immigration problems for them in the future. As such, asylum may not be the best fit for people who want to be able to visit their home country. 

Asylum Delays

The asylum process can take many years because of delays at the asylum offices and in the immigration courts. To give a sense of the scope of the delays, the New York asylum office has over 40,000 cases in its backlog and the Newark asylum office has around 25,000 cases in its backlog. The offices schedule interviews on a “last in first out” basis, so some people who file an affirmative asylum claim will have an interview quickly, but more applications are filed than the asylum offices can handle, so many cases go into the backlog.  Every month, they schedule some cases from the backlog, but there are cases filed in 2015 still waiting for an interview. 

By the end of December 2021, there were around 1.6 million cases pending in immigration courts across the country, the highest number ever. By the end of December 2021, there were over 167,000 cases pending in immigration courts in New York state alone.

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