What is the asylum process in the United States? What is the defensive asylum process? Can I work and get a green card through the asylum process?
In an earlier post, we discussed the basic requirements for asylum, and the procedure for applying for asylum by filing file Form I-589, Application for Asylum and for Withholding of Removal with the U.S. Citizenship and Immigration Services (USCIS). This next part will discuss the Defensive Asylum Process, Work Authorization and obtaining permanent residency through the asylum process.
Defensive Asylum Processing with the Executive Office for Immigration Review (EOIR)
A defensive application for asylum occurs when someone in removal proceedings in immigration court request asylum as a defense against removal from the United States. Individuals are typically placed in defensive asylum proceedings in one of two ways:
- USCIS has determined that applicant is not eligible for asylum and refers the case to immigration court; or
- The individual is placed in removal proceedings. This usually happens when an individual has contact with law enforcement or immigration officials and they determine that the person is undocumented and in violation of immigration law. This also occurs as a result of contact with the U.S. Customs and Border Protection (CBP) while trying to enter the United States without proper documentation.
Several trial-like hearings will be conducted as the Judge determines whether the applicant qualifies for asylum. Immigration Judges hear defensive asylum cases in adversarial (courtroom-like) proceedings. The Judge will hear arguments from the individual (and his or her attorney, if represented) and the U.S. Government, which is represented by an attorney from Immigration and Customs Enforcement (ICE).
Asylum applicants typically face an uphill battle in immigration court, where they are not entitled to legal representation. According to Syracuse University’s Transactional Records Access Clearinghouse (TRAC), asylum applicants without lawyers have higher denial rates (93%) than those with legal representation (64%).
If found eligible, the Judge will order asylum to be granted. If found ineligible for asylum, the Judge will determine whether there are any other forms of relief from removal (deportation). If there are none, the Judge will order the individual to be removed (deported) from the United States. The Judge’s decision can be appealed by either the applicant or the Government. For more information on the asylum process, please follow the link to the dedicated page on USCIS.
Can I work in the United States?
An asylee, or a person granted asylum, is authorized to work in the United States, may apply for a social security card, may request permission to travel overseas, and can petition to bring family members to the United States. Asylees may also be eligible for federal or Office of Refugee Resettlement benefits, such as Medicaid or Refugee Medical Assistance.
Can I become a permanent resident?
After one year, an asylee may apply for lawful permanent resident status (i.e., a green card). Once the individual becomes a permanent resident, he or she must wait four years to apply for citizenship. Click here for more information about this process.
The asylum process is quite complicated. If you believe you qualify for this type of relief, seek the advice of an experienced attorney. For additional information on the Asylum Process, follow the link to the first part of this post.
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