Office Location is Irving, Texas and Albuquerque, New Mexico
Concerned about immigration issues following President Donald Trump's re-election? Click Here
Office Location is Irving, Texas and Albuquerque, New Mexico
Asylum is one of the most misunderstood areas of immigration law. Many people know that the United States offers protection to individuals fleeing persecution, but few understand the two distinct pathways through which asylum can be sought, or how dramatically different the experience can be depending on which path you are on.
Affirmative asylum is for individuals who are currently in lawful immigration status in the United States and want to apply for asylum before being placed in removal proceedings. Typically, these are people who entered the country legally on a work visa, a student visa, or another valid status, but conditions in their home country have become so dangerous that returning would put their life or safety at risk.
The affirmative process begins with filing an asylum application with the USCIS Asylum Office. After what can be a wait of several years, the applicant is called in for an interview. These interviews are conducted by asylum officers, not judges, and the atmosphere is notably informal. The officers are generally friendly and are not adversarial. Their goal is to create an environment where the applicant feels comfortable sharing their full story.
I have represented physicians from Yemen who spent years waiting for their asylum interviews. They were in valid legal status throughout, and when their cases were finally heard, they were approved through the affirmative process. But cases like theirs, where the asylum office actually grants the application, are the exception, not the rule.
If the asylum officer determines that the applicant has not met the burden of proof, the case is not simply denied and closed. Instead, it is referred to immigration court for a hearing before a judge. This is where affirmative asylum becomes defensive asylum.
There is one important distinction: if the applicant was in lawful status at the time of the asylum office decision, they are not placed in removal proceedings upon referral. They remain in the country legally while the court case proceeds.
Defensive asylum is asylum sought in immigration court, either because a case was referred from the asylum office or because the person was already in removal proceedings and filed an asylum application as a defense against deportation.
The defensive process is more formal and more adversarial. The case is heard by an immigration judge, and the applicant can present witnesses, argue the law, and submit extensive evidence. Approval rates in defensive asylum cases vary dramatically by judge, ranging from roughly 40 percent at the high end to less than 2 percent at the low end. Researching your judge’s history with asylum cases is an essential part of case preparation.
One of the most critical rules in asylum law is the one-year filing deadline. If you have been in the United States for more than one year and then apply for asylum, the burden of proof becomes extremely high and nearly impossible to meet. Judges deny cases regularly on this basis alone.
There are exceptions. If there has been a significant change in country conditions since the applicant arrived, or if the applicant’s personal circumstances have changed in a way that created a new basis for persecution, the one-year bar can be overcome. But the evidence required to do so is substantial, and the argument must be carefully constructed.
Much of the work in any asylum case involves educating the decision-maker, whether an asylum officer or an immigration judge, about the conditions in the applicant’s home country. Expert witnesses who can testify about political, social, and security conditions in the applicant’s region are often the most important assets in these cases.
I have used expert witnesses extensively in my asylum practice. In one group of cases involving clients from the Punjab region of India, the expert’s testimony about on-the-ground conditions was essential to the judge’s understanding of why these individuals genuinely feared returning home. Without that context, the judge had no framework for evaluating the claims.
It is important to understand that asylum is formally known as political asylum, and the word “political” is not meaningless. The politics of the relationship between the United States and the applicant’s home country play a significant role in how asylum cases are decided. When the U.S. government recognizes that a particular country’s government is persecuting its people, asylum cases from that country are far more likely to succeed.
A historical example illustrates this well. After the Iranian Revolution in the 1980s, the United States created a streamlined process for Iranian Baha’is to receive asylum. Members of the Baha’i faith who could produce an official membership card were granted asylum almost automatically, because the U.S. government recognized the severe persecution Baha’is faced in Iran. That kind of favorable political alignment can make an enormous difference in individual cases.
Asylum cases require a tremendous volume of supporting evidence. Country conditions reports, medical documentation, personal declarations, expert testimony, and corroborating records must all be assembled into a compelling narrative. The scales are weighted against the applicant, and the standards are interpreted strictly. Having an experienced immigration attorney who knows how to build and present these cases is essential to giving yourself the best chance of success.
Attorney John Lawit has handled asylum cases involving clients from countries around the world, including Yemen, India, Iran, Korea, and many others. Contact our firm to discuss your asylum case and explore your options.
