Applications for Asylum
People who are given asylum or refugee status in the United States receive special legal protections, so that they need not return to the country where they faced persecution. If you think you are eligible for these protections, you will need to prove your case to the U.S. government, by fulfilling the application process requirements.
One key difference between applications for asylum and refugee status is where you apply from—would-be refugees must apply from outside the U.S. (and cannot apply directly to the U.S.), while people requesting asylum must apply either at a U.S. border (including airports, seaports, and the like) or from within the United States. Below is an overview of the application process for asylum or refugee status.
WARNING: Applying for asylum at a U.S. border became virtually impossible under the Trump administration, and many applicants were sent back. The Biden-Harris administration pledged to bring procedures into line with international law, but continue to use something called “Title 42” to exclude border entrants based on supposed COVID-19 concerns (which experts say are unfounded). Thus the below descriptions of border processing are in ongoing flux.
Applying for Refugee Status
To apply for refugee status within the United States, you must first receive a referral to the U.S. Refugee Admissions Program (USRAP). USRAP gives its highest priority to people who are identified and referred to the program by the United Nations High Commissioner for Refugees (UNHCR), a U.S. embassy, or a designated nongovernmental organization (NGO). Second priority is given to groups of special humanitarian concern. The third priority is family reunification—bringing together spouses, unmarried children under 21, or parents of persons who were lawfully admitted to the U.S. as refugees or asylees.
If you’ve been selected by USRAP, you’ll be asked to provide proof of your persecution and a detailed affidavit explaining what happened and why you are afraid to return to your home country. The affidavit is particularly important and should spell out details of what happened to you and what you fear would happen if you returned. (It’s not enough to say something general like, “I was persecuted.”)
You’ll also need to undergo a medical examination and investigations to determine whether you are a threat to the security of the United States. After submitting your application, you will meet with an overseas asylum officer who will make a decision on your case. If approved, you will be given a visa that you can use to enter the United States. If your application for refugee status is denied, there is no opportunity for appeal.
Applying for Asylum Status in the U.S.
Applying at U.S. borders and entry points
If you are at the U.S. border or airport and have a valid visa or entry document, it’s best to use that to enter, without raising the issue of your need for asylum. If, however, the U.S. officials don’t want to let you in, you can explain that you fear returning to your home country and ask to apply for asylum. Then, if you can pass a “credible fear interview,” you will be allowed into the U.S. to present your full case for asylum before an immigration judge.
As a side note, the Trump Administration attempted to undo this law by creating a policy called “Remain in Mexico” or the Migrant Protection Protocols or MPP. It meant that people seeking asylum at the Southern border would not be allowed to see an immigration judge within the U.S., but have to wait in Mexico, often in camps for long periods of time, until their cases can finally be heard. The Biden Administration sought to undo the MPP, and finally got the go-ahead from the Supreme Court in June of 2022.
More importantly for current applicants, however, the Trump administration also used Title 42 of the U.S. Code to expel entrants at both the Southern and Northern borders, supposedly to prevent the spread of COVID-19 (despite public health experts saying this doesn’t help at all). The Biden administration has continued to implement Title 42, and will detain, fingerprint, and then sent people back to their countries of origin even if they fear persecution there. Advocates hope that this will be stopped before long, and that people fleeing persecution will be allowed to proceed as normal.
Applying in the U.S.
If you successfully make it past a border or entry point and into the U.S., you’ll have more time to apply for asylum. In fact, you can take up to a year after entering the U.S. to start the process. (If that deadline has passed, talk to an attorney—exceptions are possible, and USCIS may show leniency when it comes to the deadline.)
Your first step in applying for asylum will be to fill out USCIS Form I-589 and mail it to USCIS together with other documents you’ll be asked to provide. One of the most important will be an extensive affidavit or personal statement, which needs to contain details that you’re prepared to explain orally, as well. There is no fee to file Form I-589. Also consider applying for backup forms of relief, such as Withholding of Removal, or protection under the Convention Against Torture.
It’s wise to include extensive documents that back up your claim. Documents naming you personally are ideal, such as a newspaper article about your arrest, a group membership card (if being affiliated with that group led to your persecution), or medical records showing injuries you suffered from being beaten or tortured.
Even if you don’t have this kind of documentation, a well-prepared case should show how conditions in the country you fled from match what you’ve described in your affidavit. For example, if you’re claiming that the government regularly threatens dissidents, it would help to have international press articles or reports by human rights organizations confirming this.
After submitting your I-589 and supporting documents to USCIS, you will be scheduled to attend an interview at a USCIS asylum office—eventually. The wait for an asylum interview can be many years, depending on region. USCIS’s Affirmative Asylum Scheduling page will tell you its latest scheduling priorities. An attorney can help you prepare for your interview and even attend along with you. If you don’t speak English, you’ll also need to bring your own interpreter to the interview.
If the asylum office denies your case, it will refer you to immigration court. There, you can present your case again, to an immigration judge—and add more documents and evidence. Your own attorney will interview you in front of the judge, after which an attorney for the U.S. government will question you. The judge can ask more questions, as well. Such hearings can go on for hours and still not finish. It’s common for them to be rescheduled to continue on another day.
If the judge denies your claim for asylum, you can appeal—first to the Board of Immigration Appeals (BIA), then to a federal appeals court, even on up to the U.S. Supreme Court if it decides it wants to hear your case. (This is rare.)
Attorney Simran Kaur specializes in criminal defense and immigration law. Simran Kaur began her career as a prosecutor for San Joaquin County.
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