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Legal Information: Federal

Immigration

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Updated: 
January 29, 2019

What is asylum? Who can be eligible for asylum status?

Asylum is an immigration status that may be granted to someone who is already here in the U.S. and is unable or unwilling to return to his/her country of nationality because of mistreatment/abuse (persecution) or a well-founded fear of mistreatment/abuse based on one or more of the following protected grounds:

  1. race;
  2. religion;
  3. nationality;
  4. membership in a particular social group; or
  5. political opinion.1

If you were a victim of domestic violence, sexual violence, or other gender-based violence in your home country, please see Can a victim of domestic violence file for asylum? for more information about applying for asylum.

An individual seeking asylum comes to the U.S. on his/her own by:

  • using a nonimmigrant visa;
  • presenting him/herself at a port of entry; or
  • entering the U.S. without inspection (in other words, without permission or proper papers).

Unlike a refugee, a person seeking asylum does not receive any assistance from the U.S. government before arriving in the U.S.

If you are an undocumented person and are not in removal proceedings, you can apply for asylum affirmatively at the Asylum Office, even if you are no longer or were never in status. If you are already in removal proceedings, you can apply for asylum as a defense to deportation at the Immigration Court, which means you are asking to not be removed from the U.S. because you should be granted asylum. Either way, the deadline for filing an asylum application is one year from your last date of entry into the U.S. If you have been in the U.S. for longer than one year, you can still apply but will need to show either extraordinary circumstances or changed circumstances to explain why you did not file within one year.2

If you are undocumented and your application for asylum is not granted, it could ultimately result in your deportation.3 It is important to speak to a lawyer who has experience in this area of law. To find a list of legal resources in your area, please see Finding a Lawyer and select your state or see our National Organizations Immigration page.

1 INA § 101(a)(42); 8 CFR § 208.13
2 See USCIS website
3 USCIS website

Can a victim of domestic violence file for asylum?

Non-U.S. citizen victims of sexual violence and other forms of gender-based abuse may qualify for asylum status if their abuse was related to any of the five “protected grounds” explained in What is asylum? Who can be eligible for asylum status?1

Generally, someone who experienced domestic violence or sexual assault in another country may apply for asylum in the U.S. if the government in his/her home country is “unwilling or unable” to protect the victim from the violence perpetrated against him/her.

Under the current U.S. government, it has become more difficult to win an asylum case based on domestic violence. In June 2018, then-Attorney General Jeff Sessions issued a decision declaring that such cases should “generally” no longer be approved. Since then, more judges have been rejecting asylum applications based on domestic violence. However, under the law, domestic violence survivors can still be found eligible for asylum if they meet the relevant legal requirements, and many applications are still being approved. Additionally, Sessions’ decision is being challenged in the courts. In December 2018, a federal judge issued a positive decision ruling that the federal government cannot use Sessions’ decision when doing preliminary asylum screenings for “credible fear” at the border.

An undocumented person can apply for asylum2 but if the application is not granted it could ultimately result in his/her deportation. We recommend contacting a knowledgeable immigration attorney who has experience working on asylum before applying. It is important to speak to a lawyer who has specific experience in this area of law. To find a list of legal resources in your area, please see Finding a Lawyer and select your state or see our National Organizations Immigration page.

1 See INA § 101(a)(42), 8 CFR § 208.13
2 See USCIS website

What types of asylum petitions are there? How long after arriving in the U.S. do I have to apply?

You can apply for asylum through either the affirmative process or the defensive process.

Through the affirmative asylum process, you file an application for asylum after arriving in the U.S. To be granted asylum through the affirmative asylum process, you must be physically present in the U.S. You may apply for asylum status regardless of how you arrived in the United States or your current immigration status.

The other way to seek asylum is through the defensive process. A person can file a defensive application for asylum as a defense against removal from the U.S. For a defensive asylum application, you must be in removal proceedings in immigration court with the Executive Office for Immigration Review (EOIR). People are generally placed into defensive asylum processing if they are:

  • referred to an immigration judge by USCIS after not being granted asylum at the end of the affirmative asylum process; or
  • placed in removal proceedings because they were caught (apprehended):
    • in the United States or at a U.S. port of entry without proper legal documents or in violation of their immigration status; or
    • by a U.S. Customs and Border Protection (CBP) officer while trying to enter the U.S. without proper documentation, were placed in the expedited removal process, and were found to have a credible fear of persecution or torture by an asylum officer.1

For affirmative or defensive asylum petitions, you must apply for asylum within one year of the date of your last arrival in the U.S. However, there can be an exception to the one-year filing deadline if you can show that:

  • there are:
    • changed circumstances that materially affect your eligibility for asylum; or
    • extraordinary circumstances relating to the delay in filing; and
  • you filed within a reasonable amount of time given those circumstances.2

Immigration laws are complicated. It is important to speak to a lawyer who has experience in this area of law. To find a list of legal resources in your area, please see Finding a Lawyer and select your state or see our National Organizations Immigration page.

1USCIS website
2 8 CFR § 208.4(a)(2)

Will I get an interpreter if I don’t speak English?

If you are applying for asylum without being in removal proceedings (under the affirmative asylum process), you will have to bring your own interpreter to the asylum interview. The government will not provide one for you. The interpreter cannot be your lawyer or representative, or a witness who will be testifying on your behalf. The interpreter must be fluent in your language and in English, and must be at least 18 years old. If you have a lawyer or advocate helping you apply, this is something s/he can hopefully help to arrange.

If you are requesting asylum as a defense to removal proceedings (under the defensive asylum process), the government will provide an interpreter for you at the asylum hearing and in all court proceedings.1

1 See USCIS website