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
- 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. People usually ask for asylum at the border if they do not have a valid visa or documents to enter the United States.
If you try to enter the U.S. without proper documentation and you get stopped, you will be placed in “expedited removal” proceedings by Department of Homeland Security (DHS) officials. You can ask them for asylum by simply telling them that you are afraid of returning home. You will be placed in a detention facility, and you will be given at least 48 hours after your arrival at the facility to have a "credible fear" interview. During this interview, an asylum officer will determine whether you have a “credible fear” of returning home -- that is, whether there is a "significant possibility" that you may qualify for asylum.
During the interview, DHS will provide you with an interpreter if you cannot communicate in English. You may also want to request the assistance of a representative (for example, a friend or family member) or an attorney prior to the interview. If you do not want to wait 48 hours before your interview, you can also "waive" this waiting period, or request to be interviewed sooner.
At the interview, 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 may suffer) in your home country. At the conclusion of the interview, the asylum officer will present a summary of the facts that you have told him or her and you will have an opportunity to correct any errors or misstatements. Make sure that you do so, as if you provide conflicting testimony later on, your credibility may come into question. If you later present your asylum case in Immigration Court, the Immigration Judge (IJ) and the government attorney will have access to your credible fear interview answers.
If you are found to have a credible fear, you will be able to ask for asylum and present your case fully in Immigration Court, in what are called removal proceedings. You will be issued a Notice to Appear, alerting you as to the time and date of these proceedings. If the credible fear officer makes a negative determination, you will be ordered removed immediately from the United States. To avoid removal, you can ask that an IJ review the asylum officer’s “credible fear” summary and decision. If the IJ agrees with the asylum officer’s denial of your case, you will be ordered removed. If, however, the IJ decides that you do demonstrate “credible fear,” you will be able to present your case fully in Immigration Court, in “removal” proceedings.
If you enter the U.S.with valid documents, can still ask for asylum at the border, but it is not advisable to do so. If you are allowed entry to the U.S., you can apply for asylum through the “affirmative” process -- by submitting your asylum application within one year of your arrival to the United States. 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 currently have 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 were placed into removal proceedings because you do not have legal immigration status.
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 IJ may ask you questions as well. At the end of the hearing, the IJ 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.