When Can You Apply for Asylum?

You can ask for asylum in the United States at several different times:

• at the border or port of entry
• affirmatively after arriving in the U.S., or
• while in removal proceedings.

Which one you choose or use depends on how you enter the U.S. and your subsequent interactions with the U.S. government.

Asking for Asylum at the U.S. Border or Port of Entry

You can ask immigration officials for asylum when you arrive at the border, airport, or other entry point into the United States. However, most people do not choose to do so unless they have no other option, most likely because they were trying to enter unlawfully.

If you try to enter the U.S. without proper documentation and you get stopped, you will be placed in “expedited removal” proceedings by the Department of Homeland Security (“DHS”) officials. You can ask them for asylum by simply telling them that you are afraid of returning home. An asylum officer will then interview you to determine whether you have a “credible fear” of returning home -- that is, whether your fear is believable.

You should tell the officer why you are afraid to return home and why you qualify for asylum in the United States. Give specific details about the harm or threats you suffered (or would suffer) in your home country. That way, the asylum officer is more likely to find your fear “credible.”

The “credible fear” interview normally takes place a few days after your arrival to the U.S., in a detention center or at a DHS office. It lasts around one or two hours, in most cases. You will not be allowed contact with your family or an attorney before or during this interview. The asylum officer will give you a decision about a week after your interview. In the meantime, you will be held in a detention facility.

If you pass your credible fear interview, you will be able to ask for asylum and present your case fully in Immigration Court, usually within a week or two, in what are called removal proceedings.

If you fail your credible fear interview, you will be ordered removed immediately from the United States. To avoid removal, you can ask that an Immigration Judge review the asylum officer’s “credible fear” notes and decision. The Judge will do so within about a week. If the Judge agrees with the asylum officer’s denial of your case, you will be ordered removed. If, however, the Judge decides that you do demonstrate “credible fear,” you will be able to present your case fully in Immigration Court, in “removal” proceedings.

Make sure that the information you provide during your credible fear interview is honest, detailed, and consistent. If you later present your asylum case in Immigration Court, the Judge and the government attorney (who will argue that you should be removed) will have access to your credible fear interview answers. Whatever you tell the Judge in Court will have to be consistent with whatever you told during your credible fear interview.

If you enter the U.S.with valid documents, you too can ask for asylum at the border. You will then be given a credible fear interview. Note, however, that if you enter with valid documents, you will also have the option to apply for asylum through the “affirmative” process -- after entering the U.S.and submitting your asylum application within one year of entry. The affirmative application process will give you a better opportunity to present your whole story. The affirmative process has another advantage: If an asylum officer denies your asylum application after your interview, you will automatically have a full hearing on the merits of your case before Immigration Court. Therefore, it is better to wait and apply affirmatively than to apply for asylum at the border.

Applying for Asylum Affirmatively, Within One Year of Arriving in the United States

If you are physically in the U.S. and did not get detained at the border or entry point, you can apply for asylum “affirmatively.” This is true whether or not you are in valid immigration status.

Procedurally, you will need to send your asylum application on Form I-589, with supporting documents, to U.S. Citizenship and Immigration Services (“USCIS”). For a detailed description of how to apply affirmatively, see "How to Prepare an Affirmative Asylum Application."

Remember that you must apply for asylum within one year of your last entry into the United States. That is, USCIS must receive your application a day before the one-year anniversary of your last arrival. Some exceptions do apply to this rule, such as: If you had faced “extraordinary circumstances” (in your life); if you are faced with “changed circumstances” (in your home country, your personal activities, or in asylum law); or if you were in the U.S.in lawful immigration status when the one-year deadline expired. Also, the one-year deadline does not apply to applications for withholding of removal or for protection under the UN Convention Against Torture, which you can apply for using the same form, and will result in the right to remain in the U.S. (but not to later apply for a green card).

Applying for Asylum While in Removal Proceedings

You can also file what's called a “defensive” asylum application, in removal proceedings in Immigration Court. In other words, you can ask an Immigration Judge to grant you asylum as a defense against the U.S. government's efforts to remove you from the United States. For guidelines on applying for asylum while in removal proceedings, see "How to Prepare an Asylum Application in Removal Proceedings."

You will end up in removal proceedings in the following circumstances:

• you passed your credible fear interview at the border, or
• you applied affirmatively and your local asylum office referred your application to the Immigration Court, or
• you did not apply for asylum, but got arrested.

Remember that no matter how you ended up in removal proceedings, you will need to apply for asylum within one year of entering the United States.

When you ask for asylum in removal proceedings, you will have a merits hearing, at which you will present your story and statements from witnesses. The DHS attorney will also question your eligibility for asylum. The Immigration Judge may ask you questions as well. At the end of the hearing (which may carry over for more than one court date) the judge will grant or deny your asylum case. A denial can be appealed to the Board of Immigration Appeals (BIA) and then through the federal court system.