Immigration

If you are not in immigration detention or involved in an immigration court proceeding, you can file your application with the U.S. Citizenship and Immigration Services (USCIS). This is known as the affirmative asylum process. There is no fee for applying for asylum, and USCIS must keep the content of your application confidential, meaning that no one may ask USCIS to see your application for asylum.¹ If you follow this process, you will eventually be scheduled to appear for an interview about your application.

If you are in an immigration court proceeding, you can ask the immigration judge for asylum as a defense against removal from the U.S. This is known as a defensive asylum process.² If you follow this process, you will submit your asylum form to the court, along with documents that support your story, and you will eventually testify about your application in court.

Either way, 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:

1. there are:
   • “changed” circumstances that materially affect your eligibility for asylum; or
   • “extraordinary” circumstances relating to the delay in filing; and
2. you filed within a reasonable amount of time given those circumstances.³

In order to know what circumstances can be considered “changed” or “extraordinary,” it’s important to work with an asylum lawyer who is up-to-date on the latest policies and court cases. 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.

If you are in removal proceedings before an immigration judge, you may also ask them for withholding of removal or relief under Article III of the Convention Against Torture. Withholding of removal is similar to asylum, but it has a higher burden of proof and fewer benefits. A claim under the Convention Against Torture also has a higher burden of proof and fewer benefits, as well as a different set of eligibility requirements. You may be able to qualify for relief under the Convention Against Torture even if you are unable to qualify for asylum or withholding of removal. Both allow you to remain in the United States indefinitely, but do not make you eligible to apply for a green card. If you become eligible for a green card in another way, you will need to go back to immigration court to ask the judge to allow you to apply for it.  For more information about withholding of removal and the Convention Against Torture, please see the Immigration Equality website.

In order to make sure that you make all of the claims that are possible for you in removal proceedings, it’s important to work with a lawyer who is up-to-date on the latest policies and court cases. 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 8 CFR §§ 208.6; 1208.6
² USCIS website
³ 8 CFR § 208.4(a)(2); INA § 208(a)(2)(B), (a)(2)(D); 8 USC § 1158(a)(2)(B), (a)(2)(D)

It is very important to have a knowledgeable immigration lawyer help you throughout the asylum application and court process. There are ways to see a lawyer even if you cannot afford one, and you should always try to contact a lawyer before applying. Your conversation with the attorney will be confidential, and s/he cannot report you to immigration authorities without your consent.

If you cannot afford to pay an attorney, you may qualify for free or low-cost legal aid. You will see a list of legal services offices on the Finding a Lawyer page for your state. In addition, please go to our National Organizations Immigration page. In many states, Catholic Charities may be able to provide you with legal assistance relating to immigration. Go to the Catholic Charities website and search for the contact information in your state. You do not have to be Catholic to receive their assistance.

If you apply for asylum with USCIS and they do not grant your application, if you do not have any other immigration status, such as a student or visitor visa for which your stay has not expired, they will issue you a Notice to Appear in removal proceedings and you will have to appear in immigration court. At that time, you can ask again for asylum from the immigration judge.

If you ask for asylum as part of your defense in removal proceedings, and the immigration judge says that you do not qualify and you don’t have other applications for immigration status pending, you will be issued an order of removal from the United States. You can appeal that decision to the Board of Immigration Appeals (BIA), which is the highest court in our immigration court system. If the BIA denies your request, your order of removal will become final. You can still appeal to a federal court and ask that your final order of removal be put on hold while you appeal the decision. If you are still denied asylum by federal court, or if you do not file an appeal when the immigration judge denies your case, you could be deported if the immigration authorities decide to enforce your removal order. It is almost impossible to do any of this successfully without an attorney with experience in asylum.

It’s important to know that even if you lose your asylum case and are issued a final removal order, you may still be able to apply for survivor-based immigration relief in the form of a U visa, T visa, or VAWA self-petition. It’s important to speak to a lawyer if you have any questions about applying for one of these options, especially if you have a removal order.

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.