Can Asylum Save You from Deportation and Removal? Here’s What You Need to Know

Can Asylum Save You from Deportation and Removal
Picture of Shawn Sedaghat, Esq.

Shawn Sedaghat, Esq.

If you’re facing deportation or removal from the U.S., it’s normal to feel overwhelmed. But here’s some good news: asylum can be a powerful tool to help you stay in the country legally. This article will break down everything you need to know about asylum and deportation and removal from the US.

 

Whether you’re afraid of persecution in your home country or have already been placed in removal proceedings, understanding how asylum works could make a big difference in your case. Let’s break it down step by step so you know exactly how this process works and how it might help you.

 

What is Asylum?

Asylum is a protection offered by the United States through the asylum office, to individuals who fear persecution in their home country based on specific factors. These factors include race, religion, nationality, political opinion, or membership in a particular social group. If you’re granted asylum after an immigration review and in accordance to immigration law, you are legally allowed to stay in the U.S., avoid deportation, and may even be able to apply for permanent residency (a green card) after one year. Asylum gives you the opportunity to live, work, and thrive in the U.S. without fear of being sent back to a dangerous situation.

a group of people standing in a line with a flag

Affirmative Asylum vs. Defensive Asylum

There are two ways to apply for asylum: affirmatively or defensively.

 

  1. Affirmative Asylum is for people who are not in removal proceedings. You can apply for asylum within one year of arriving in the U.S. by submitting an asylum application (Form I-589) to U.S. Citizenship and Immigration Services (USCIS). If your asylum is not granted, and you do not have any other legal immigration status, your case will be referred to immigration court, where you will have another chance to present your case in what is called defensive asylum.
  2. Defensive Asylum comes into play when you’re already in removal proceedings. If you have received a Notice to Appear in immigration court, you can file for asylum as a defense against deportation. This means you’re asking the immigration judge to let you stay in the U.S. because you fear returning to your home country. Defensive asylum cases are handled in immigration court, and the judge decides if you qualify for asylum or other protections.

How Does the Asylum Process Work?

The asylum process starts with submitting Form I-589, also known as the Application for Asylum and Withholding of Removal. Once you submit the form, your case will move forward depending on whether you applied affirmatively or defensively.

 

  1. Submitting the Application: After you submit your application, you will either be scheduled for an interview with an asylum officer (if you applied affirmatively) or go straight into removal proceedings for your hearing before an immigration judge (if you applied defensively).
  2. Asylum Interview: If you’re applying affirmatively, you’ll have an interview with an asylum officer. This interview is crucial as you’ll need to explain why you fear returning to your home country and provide evidence to support your claims.
  3. Immigration Court Hearing: If you’re in removal proceedings, your case will be heard by an immigration judge. You’ll present evidence, testify about your fears, and your lawyer can argue your case. The government’s lawyer will also have a chance to challenge your claims.
  4. Decision: Whether your asylum is granted or denied, the decision will come from either the asylum officer (in affirmative cases) or the immigration judge (in defensive cases). If granted, you’ll be protected from deportation and can eventually apply for a green card. If denied, you may still have options for appeal.

What Happens If You Are Granted Asylum?

Once asylum is granted, you can remain in the U.S. legally, work, and apply for a green card after one year. Asylees can also apply for family members (spouse and children) to join them in the U.S. You will also have access to certain government benefits like Medicaid or Refugee Medical Assistance, helping you adjust and build a new life here.

 

Additionally, once you have been granted asylum, you can apply for a work permit, which allows you to legally work in the U.S. while you wait to adjust your status to permanent resident. As an asylee, you can also travel outside the U.S., but be careful to request advance permission to return before you leave.

Can You Be Denied Asylum?

Yes, asylum can be denied, but don’t lose hope! Many times, applicants are denied because they don’t meet certain deadlines, miss providing key information, or lack strong evidence. Here are some common reasons asylum is denied:

 

  1. One-Year Filing Deadline: You generally must apply for asylum within one year of arriving in the U.S. unless you can show changed circumstances or extraordinary circumstances that prevented you from applying on time.
  2. Criminal Activity: If you’ve committed certain crimes, you may be ineligible for asylum. Crimes involving moral turpitude, drug trafficking, and violent offenses can disqualify you from asylum protection.
  3. Previous Deportation: If you have already been deported from the U.S., you may be barred from applying for asylum unless you can demonstrate that conditions have drastically changed in your home country.
  4. Inconsistent Testimony: Your testimony needs to match the facts and evidence you provide. Inconsistent or incomplete information can lead to a denial.
a man in handcuffs standing next to an airplane

Withholding of Removal: A Backup Plan

If you are not eligible for asylum, you may still qualify for Withholding of Removal. This is a different type of protection that also prevents you from being deported. However, it has stricter requirements and offers fewer benefits. Withholding of removal doesn’t lead to permanent residency or citizenship, and it doesn’t allow you to bring family members to the U.S.

 

To win withholding of removal, you must prove that it is more likely than not that you would be persecuted if sent back to your home country. This is a higher standard of proof compared to asylum, and the protection isn’t as permanent.

 

Appealing a Denial

If your asylum application is denied, all is not lost. You have the right to appeal the decision. After an immigration judge denies your case, you can appeal to the Board of Immigration Appeals (BIA). If the BIA also denies your appeal, you may be able to take your case to the federal court of appeals.

 

Appealing is time-sensitive, so it’s important to act quickly and work with an experienced immigration attorney who can guide you through the process.

 

Credible Fear Interviews

If you are apprehended at the U.S. border and express a fear of persecution in your home country, you may undergo a Credible Fear Interview with an asylum officer. This interview is to determine whether you have a credible fear of persecution if returned to your home country. If you pass this interview, you will be placed in removal proceedings where you can present your asylum case.

Conclusion

Asylum can be a lifeline for those facing deportation and removal from the U.S. It’s designed to protect individuals from returning to dangerous and life-threatening situations in their home countries. Whether you’re applying affirmatively or using it as a defense in removal proceedings, having a strong case and legal representation is crucial.

 

If you or a loved one are worried about deportation, consider consulting with an experienced immigration attorney. They can guide you through the process, help you gather evidence, and represent your case in court. Don’t face this challenge alone—professional help can make all the difference in achieving a successful outcome.

 

FAQs

  1. What is the difference between asylum and withholding of removal?

    Asylum offers more benefits, including a path to permanent residency and the ability to bring family members to the U.S. Withholding of removal, while still protecting you from deportation, does not provide these benefits and requires a higher level of proof.
  2. Can I apply for asylum after being placed in removal proceedings?

    Yes, you can apply for asylum defensively if you’re in removal proceedings. The immigration judge will review your case and decide if you qualify for asylum or withholding of removal.
  3. How long does the asylum process take?

    The timeline for asylum cases can vary, but it often takes months or even years to complete, depending on the backlog in the immigration court or asylum office.
  4. What happens if my asylum application is denied?

    If your application is denied, you may be able to appeal the decision to the Board of Immigration Appeals. It’s important to act quickly and consult with an immigration attorney if you decide to appeal.
  5. Can my family members apply for asylum with me?

    Yes, your spouse and children can be included in your asylum application if they are in the U.S. If you are granted asylum, you can petition for your family members to join you in the U.S. if they are still abroad.
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