October 16, 2018 Guy Menahem

Asylum: What is it, and What is the Process Like?

What is asylum?

Non-citizens who are physically present in the United States and are afraid to return to their country of origin can apply for asylum in the United States, if they have suffered past persecution or fear future persecution based on their race, religion, nationality, political opinion, or membership in a social group.

What is the asylum process like?

If a person is making an initial application for asylum, and they are not detained, or not yet in front of the Immigration Court, they are making what is called an affirmative application for asylum. This is made with the U.S. Citizenship and Immigration Services (USCIS). There are several Service Centers that accept asylum applications, depending on where the applicant lives, and it is essential that the application be sent to the right Service Center. After USCIS receives the application materials, the asylum applicant will receive a notification to go in for fingerprinting. Shortly thereafter, the applicant will be scheduled for an interview at a local Asylum Office.

At the interview, there is an Asylum Officer, and the applicant is allowed to have their attorney and an interpreter present.

Under most circumstances, the applicant will be asked to come back and receive the Asylum Officer’s decision. A vast majority of cases before the Asylum Office are not granted – they are referred to the Immigration Court, where the applicant (now called a “respondent,”) appears before a Judge and a prosecutor who represents the Government.

Should I just try to fill out the application on my own, represent myself at the Asylum Office, and see what happens?

This is a very bad idea. Unfortunately, there are too many people who try to fill out the application, and collect all the evidence, by themselves, and then think that they will just “try their luck” at the Asylum Office. Their thinking is “if I win, great, and if I don’t, and my case is sent to the Court, then I will hire a lawyer.” They are trying to save money, but they are making a huge mistake.

Anything you send to USCIS, and anything you say at the Asylum Office, can be brought up in Court by the Prosecutor or the Judge. It is essential that you work with a licensed and experienced immigration asylum lawyer from the beginning, so you can put your best case forward, and be fully prepared for the Asylum Office interview.

How long will it take from the date of filing the asylum application with USCIS until I get an interview?

This is a great question. Procedures pertaining to timing of asylum interviews can change, so it is essential to work with a competent and experienced asylum lawyer who keeps up on the latest updates regarding this question.

Earlier this year, we had a blog post on this very issue, regarding changes to the procedures made for scheduling of interviews at the Asylum Office. The procedures were put in place to deal with, among other things, a serious backlog in asylum cases. The Administration announced at the end of January 2018 a change in the procedures that could be summed up with the phrase “last in, first out.” What this means is that according to that policy, those applications which were filed later (i.e. more recently) would be given priority and interviewed earlier. (There was one minor exception in the January 2018 announcement. That exception is for asylum applicants who had interviews that had already been scheduled prior to the January 2018 announcement, and for whatever reason those interviews had to be rescheduled or postponed. Applicants in those circumstances would not be considered “first in” for purposes of the “last in, first out” rule.)

During the summer of 2018, there were reports that the government was able to make some headway into the backlog. However, we do not have any clear indication that the “last in, first out” procedure has been discontinued as of the date of this blog posting.

Asylum procedures can change, and it is possible that the number of cases in the backlog may change, meaning that the order of how the government takes the cases could shift. All the more reason to work with a competent and experienced asylum lawyer who has up-to-date information from the immigration authorities.

What are some of the pitfalls that you see happen when people try to represent themselves?

There are many, but I will mention the two we see most often:

The first is filing the application for asylum late. Unless there are extraordinary circumstances, an application for asylum must be filed within one year of the date the foreign national entered the United States. There are extraordinary circumstances that excuse late filing, but they are quite limited, and not easy to prove. We have done many cases where we have succeeded at showing extraordinary circumstances to excuse late filing, but non-lawyers trying to do this by themselves is not a good idea. And if there is a way to file on time, it is best to file on time. Working with an experienced lawyer can help make this process more viable.

The other big mistake we see is simply putting forth a very sloppy and weak case. We have seen files put together by clients themselves where the statement that is attached to the application (where they explain in detail why they are afraid to return to their country) is simply not comprehensible. Also, we have seen where the evidence attached to the application simply does not do much to support the claims made in the application. And sometimes, those doing the application by themselves simply don’t submit any evidence.

An applicant for asylum is claiming that they fear violence if they are forced to return to their country of origin – their life is on the line. And as mentioned above, anything you send to USCIS, and anything you say at the Asylum Office, can be brought up in Court by the Prosecutor or the Judge. It makes sense to hire an experienced asylum lawyer from the beginning.

What kinds of things can prevent me from getting asylum?

This is a really important question. There are many things that can bar or prevent a person from getting asylum, even if they are in a recognized category and have the required past persecution or well-founded fear of future persecution. There is actually a very long list, but I will mention just a few of the most important ones.

First, you have to apply for asylum within one year of the date of your entry. This is a strict requirement. There are exceptions to this rule, but in general, you must show extraordinary circumstances for failure to apply on time. If your one year has passed, it is essential to work with an experienced asylum lawyer to help you make the best case that your late filing should be excused.

You may also be barred from asylum if you have a criminal record. This is very important. What we see often is crimes committed here in this country, such as DUI or drug possession (these are just examples), and even misdemeanors in U.S. criminal courts can have serious immigration implications. There are some exceptions, of course. For example, if your criminal record is for being LGBT under the oppressing state’s anti-LGBT laws, that would not bar asylum, because that is obviously part of the persecution that you allege to have suffered, i.e. the state is persecuting you for being a gay person by making being gay illegal.

The most serious bar of them all is one that attaches to you if you deliberately make up a fraudulent claim for asylum. If an Immigration Judge finds that you deliberately fabricated your asylum story, he or she will make what is called a “frivolous finding” against you. It should be noted that just because your case is denied that does not mean that the Judge will make a frivolous finding against you. A frivolous finding is made if the Judge finds that you purposely and deliberately made up your case, that you have engaged in outright lying and fabrication.

If the Immigration Judge makes a frivolous finding against you, and no appeal is granted on this finding, then the frivolous finding is final, and you will be barred from virtually all benefits under U.S. immigration laws. This means that you will not be able to get status in the United States, even through family-based or employment-based immigration, temporary visas, the diversity lottery, etc.

There are two very minor exceptions to this rule, namely withholding of removal and protection under Article III of the Convention against Torture. These two forms of relief are not barred by a frivolous finding. But all other forms of immigration benefits are permanently closed off to anyone who deliberately fabricates an asylum claim. So it is probably one of the worst choices an immigrant trying to stay in the United States can make!

Do the Asylum Office and the Immigration Court provide interpreters?

This is a great question. When your case is at the Asylum Office, you are responsible for providing your own interpreter. There is no requirement that the person be a “professional” or court-certified interpreter. However, the Asylum Office utilizes phone “monitors” who listen in on the interview to make sure that the interpreting is accurate and correct, and when there are errors in translation, the monitors do correct the interpreter you have brought with you. If there are too many errors, the Asylum Officer has the right to simply cancel the interview. So it is essential that you bring an experienced interpreter who speaks both your language and English very fluently, and preferably who has experience translating in the legal context.

In contrast to the Asylum Office, the Immigration Court does provide certified interpreters, who take an oath before the Immigration Judge to provide exact translation to the best of their knowledge and ability. The Immigration Court has at its disposal interpreters who cover many of the world’s major languages.

What languages does the Lightman Law Firm team speak?

We are proud of the multi-cultural and multi-lingual background of our team. Mr. Guy Menahem, the attorney at our firm who focuses on the asylum cases, is fluent in Spanish, and conversant in Russian and French. We also have access to quality interpreters in many other languages. Mr. Menahem has spent his entire legal career in the immigration field, and has helped many individuals who are seeking asylum. He has appeared before the Asylum Office, the Immigration Courts, and the Board of Immigration Appeals.

To schedule a consultation about an asylum case, please call us at (212) 643-0985.

Guy Menahem

Guy Menahem has spent his entire legal career in the immigration field. He adds to Lightman Law Firm’s full spectrum of immigration offerings by bringing his strengths in the areas of deportation defense and asylum, in addition to complex family-based cases and citizenship.Guy has represented clients at all levels of removal proceedings, from affirmative applications for relief, to the initial charge of removability, the hearing stages, and if needed, at the appeals level. He has appeared with clients before U.S. Citizenship and Immigration Services, the Federal Immigration Courts in several states up and down the east coast, and also advocated for clients before the Board of Immigration Appeals, which sites just outside of Washington.Guy graduated from Duke University School of Law in Durham, North Carolina. He is admitted before the Supreme Court of New Jersey. He is fluent in Spanish, and is also conversant in Russian and French.To discuss your possible case with Mr. Menahem or another immigration attorney from Lightman Law Firm LLC, call (212) 643-0985 or fill out the consultation request form below. A representative of our firm will contact you shortly upon review of your request.