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Asylum may be granted to people
who are arriving or already present in the United
States regardless of whether they are here legally
or illegally. According to U.S. law, a individual
may be granted asylum if they can establish a well
founded fear of persecution if returned to their
home country. This fear must be based on their race,
religion, nationality, political opinion, or
membership in a particular social group.
U.S. law requires an individual to apply for
asylum within one year of their date of arrival into
the U.S. This one year filing requirement may be
overcome through showing changed country conditions
in the country of persecution or exceptional
circumstances.
If the one-year filing requirement or the
criteria for the waiver of the one-year filing
requirement cannot be met, an individual may qualify
for withholding of removal. For
withholding of removal, an individual must
demonstrate that it is more likely than not that
they would be persecuted if returned to their home
country due to their race, religion, nationality,
political opinion, or membership in a particular
social group.
The Application for Asylum or Withholding of
Removal Form I-589 is filed with the U.S.
Citizenship and Immigration Services. The
immigration officer will either approve the
application or refer it to the Immigration Court if
the individual is out of legal status. The asylum
application can then be renewed with the Immigration
Court. If a Notice to Appear in Immigration Court
has already been received, then the application for
asylum is filed directly with the Immigration Court
that issued the Notice to Appear. This presents the
opportunity for the applicant to plead their case
before an Immigration Judge who will either grant or
deny the application.
An alien who is granted Asylum takes on the legal
status of Asylee. This allows him or her to reside
in the United States indefinitely as long as the
threat of persecution continues. The Asylee’s spouse
and unmarried children under the age of 21 included
on the asylum application will also receive asylum.
An Asylee may apply for a refugee travel document
or advanced parole for travel out of the U.S. Such a
benefit should be obtained prior to leaving the
U.S., as the Asylee may be denied re-entry upon
attempting to re-enter the U.S. Also, an Asylee will
risk losing his/her status if he/she travels to the
county of alleged persecution. Such action could be
considered to be voluntarily availing oneself of the
protection of an allegedly persecuting country.
Another benefit available to an Asylee is
employment authorization. An Asylum Applicant whose
application is pending may apply for employment
authorization 150 days after a completed Form I-589
Application has been filed.
Finally, a year
after the grant of asylum, the Asylee may petition
for adjustment of status to become a permanent
resident. This right also applies to the Asylee’s
spouse and children.
An applicant who is granted
withholding does not receive as many benefits as an
Asylee. The individual can seek work authorization,
but will not be able to adjust his/her status to
become a legal permanent resident or a U.S. citizen.
Withholding of removal does not confer any status on
the applicant's spouse or children.
Additionally, an applicant granted withholding of
removal can never travel internationally. If an
individual with a grant of withholding of removal
travels outside the U.S., he/she will not be
permitted to return to the U.S.
A benefit to applying for withholding of removal
is that an individual may seek such relief even if
they entered a country more than a year ago. This
would allow someone who missed the one year filing
deadline for asylum to avoid being removed to a
country where they would likely be harmed. In
addition, withholding of removal is available to
aliens who have been convicted of a criminal offense
that bars them from receiving a grant of asylum
It is essential that an individual applying for
asylum or withholding of removal obtain competent
legal advice in order to compile a comprehensive
asylum application and receive proper representation
in Immigration Court.
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