Can I Affirmatively Apply for Asylum Twice (After a Denial) If I'm Still in the U.S. Legally?

In some situations, where a foreign national's stay under a visa has not yet expired when the asylum application was denied, the person may apply for asylum a second time.

By , J.D.

If you were in the United States unlawfully and applied for asylum then was denied, your case would be referred to immigration court, for a hearing before a judge, and if that was denied, you could pursue subsequent appeals. If, on the other you are in the U.S. on a tourist, work, student, or other temporary (nonimmigrant) visa, and your permitted stay hasn't expired yet by the time you're denied, such a referral won't happen. What's next?

The good news is, you might be able to apply for asylum again if your permitted stay in the United States hasn't yet expired, as described here. In particular, we'll focus on:

  • making sure your first application wasn't so weak as to be "frivolous"
  • the higher burden of proof placed on applicants filing a second asylum application after a denial
  • the need to identify what went wrong with the first application and decide whether you can fix it on the second, and
  • if submitting a second application, basic steps for doing so.

If Your First Asylum Application Was "Frivolous," You Are Barred From Reapplying

U.S. immigration law imposes serious penalties on people who knowingly submit a "frivolous" asylum application to USCIS. Not every application that gets denied is considered so flimsy or weak as to be frivolous, however. An asylum application is considered frivolous when the applicant knowingly falsified important or material, portions of the story. Penalties can include a permanent ban on receiving any U.S. immigration benefit, such as asylum or any family- or employment-related green card.

Unfortunately, some people find themselves in this situation because they hired and relied on an unqualified consultant rather than an expert attorney. If that happened to you, perhaps you did not even know what the person entered on your asylum application and what story you thereby told U.S. immigration authorities. Hopefully you also did not try to testify in your asylum interview to any false claims that might have been presented there. But if the fault was mostly the consultant's, you might, in your next application, be able to convince an asylum officer that you did not knowingly file a false application, and that you do have a valid claim for asylum.

If you yourself filled out the asylum application without understanding the law, the key question is whether you made up anything, in your effort to present what you thought was a convincing case. Affirmative lies will be a problem going forward. Omissions of important facts will be less of a problem, particularly if you can explain why you didn't realize they were important to mention.

You'll Have More to Prove on a Second Application for Asylum in the U.S.

You will have a higher burden of proof with your second application (that is, you'll have to work harder to be convincing) because of the denial of the first one. In addition to meeting the criteria for affirmative asylum, you must be able to fully explain what happened with your first application.

To help with this, you should submit a statement explaining not only your true asylum case, but accounting for what went wrong the first time. Supply documentary proof when it's relevant, for example if it was clear that the officer didn't believe particular parts of your claim.

If you were assisted by an unscrupulous or incompetent immigration consultant who messed up your application, include that person's name, address, and phone number. If you have the person's business card, submit a copy and bring the original to your interview. In your statement, list all of the meetings you had with this person and describe in as much detail as possible what the consultant said or advised you to do.

USCIS is aware that there are individuals, often called notarios, who falsely advertise themselves as immigration experts. The agency does investigate those people when it has enough information about them, and can sometimes prosecute and imprison them.

Consider What Went Wrong With Your First Asylum Application and Interview

Obviously, your second asylum application will need to address any problems that resulted in the denial of the first one. A number of factors can cause U.S. Citizenship and Immigration Services (USCIS) to deny applications for asylum from people who are afraid of persecution in their home country.

For instance, perhaps you tried to prepare the Form I-589 application yourself, without fully understanding the law. Perhaps an unqualified immigration attorney or consultant filled in the application without much actual consultation with you, and overlooked an important part of your claim.

Or perhaps the interview didn't go well. For example, was the asylum officer confused by your story or distracted by an irrelevant aspect of it? Did you fail to put forth important information? These are important concerns when preparing a second application.

Keep in mind that the asylum officer took notes during your first interview. Those notes will be in the file for your second. The officer who meets with you will have reviewed the notes, and the Form I-589, and will be able to confirm the statements you made at the first interview. If any of those statements might tip the balance against you, think ahead about how to deal with them, including in your written statement.

Preparing a New Asylum Application (Form I-589)

Not only must you clearly and thoroughly explain any confusion and omissions in your first asylum application, you must prepare a complete new asylum application; one that accurately reflects your experience in your home country and shows why you fear persecution if you return there.

You will need to fill out Form I-589 again and obtain new photos. You will once again be called in to have your fingerprints taken, and you will attend a new interview. Read more about Applying for Asylum or Refugee Status.

Getting Legal Help

It would be wise to find a licensed immigration attorney who has experience with asylum claims. The attorney should review the circumstances concerning your first application, and spend the time necessary to learn your story. The attorney will help you prepare your statement and supporting documents and review your second application with you before submitting it to USCIS.

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