Claiming asylum has never been the most popular means of entering or remaining in the US. Nevertheless, about 100,000 people apply for asylum in the US every year, representing an increase of at least 1,700 percent over 2007. The percentage of asylum claims that are approved have decreased for the last several years, even as the percentage of claims dismissed as frivolous has risen.
Not all unsuccessful asylum claims are frivolous — and some claims that are tagged as frivolous are actually honest applications submitted by well-meaning people. If you are considering submitting an asylum claim, you will need to know what features of your application might raise suspicions, as well as what consequences you might suffer if your claim is identified as frivolous.
Red Flag
Common Red Flags
To prevent your application from being deemed frivolous, and to maximize your chances of being granted asylum, keep in mind the following tips:
- Don’t wait until the one-year deadline is about to expire before applying, and don’t wait until you have been placed into removal proceedings before applying. If you are in the US under a valid visa, don’t wait until your visa is about to expire before applying. All of these behaviors are likely to cause immigration authorities to wonder whether you are simply using an asylum claim as a way of extending your stay in the US.
- If you have ever submitted an asylum claim before, you need to make sure that the information in the two applications is completely consistent, except for updated information in your new application.
- Be careful about hiring someone to prepare your asylum application for you, especially if they are not a lawyer. Some operators are well-known to US immigration authorities for submitting frivolous applications on behalf of their clients.
- Make sure that every document you submit is not only genuine, but that it looks genuine. Even a sloppy photocopy could put your application in jeopardy.
- Make sure that your photographs strongly resemble you, and that they were taken relatively recently.
- Don’t return to your home country after the persecution that you claim, even before you file an asylum claim. Doing so will cause immigration authorities to question why you would visit a country that you claim to fear returning to.
- If you have family members applying for asylum with you, make sure that the content of their applications is absolutely consistent with the content of your application.
- Learn every fact in your application by heart before you attend your asylum interview. You need to be familiar enough with it so that you can remember everything even when you feel nervous or pressured. Nevertheless, don’t memorize word-for-word answers. Remember the underlying facts, not the exact words you will use to communicate those facts.
- Do not avoid eye contact with the interviewing officer. In some cultures the avoidance of eye contact is seen as respect for authority. In the US, however, many people see it as evidence of dishonesty.
- Don’t bring any notes with you to your asylum interview. Referring to notes will make your story look concocted.
- Avoid exaggerated reactions — don’t be too nervous, but avoid exaggerated friendliness towards the interviewing officer.
Immigrants Crying
Consequences of Fraud
Remember that your application will not be declared frivolous simply because the immigration officer reviewing your case doesn’t believe your story. Without more, not being believed will result in the denial of your asylum claim. Your application will not be deemed frivolous unless:
- You have been notified of the consequences of filing a frivolous asylum claim;
- An immigration judge finds that you knowingly filed a frivolous asylum claim;
- The evidence indicates that an important aspect of your claim was deliberately falsified; and
- You must have been granted an opportunity to explain any suspicious aspects of your claim.
If your asylum claim is deemed frivolous, you could be denied the right to receive any future US immigration benefits except for a very few narrow exceptions. Even if you are in the US on a valid visa at the time, your visa might be canceled as a result of your asylum claim being deemed frivolous, and you might be deported. When it comes to the consequences of filing a frivolous asylum claim, an ounce of prevention truly is worth a pound of cure.
The sobering reality is that most asylum claims are rejected, and the rejection rate has been increasing for a number of years now. To win your asylum claim, you are going to have to exert your best efforts to ensure that your application is considerably more persuasive than the average asylum application is.
Following are some tips on how to prepare supporting documentation, which is a critical component of your application.
What You Need to Prove?
Application for Asylum and for Withholding of Removal
Every document you include in your asylum application should be designed in some way or another to help prove that you meet the legal requirements for asylum. More specifically, these documents, combined with Form I-589 and your interview, should prove that:
- You meet the legal definition of “refugee” due to persecution or fear of persecution on the basis of your race, religion, nationality, political views or membership in a particular social group.
- You complied with the one-year deadline for submission of an affirmative asylum claim.
- You are not subject to a US government ban on immigration benefits (by previously submitting a fraudulent asylum application, for example).
- Your story is internally consistent (it doesn’t contradict itself) and it is also consistent with available external evidence.
Documents Not Written in English
Foreign Languages
Any document not written in English must be accompanied by a certified translation. What this means is that you must include not only the original non-English document, but also a word-for-word translation, followed by a statement from the translator that (i) identifies the document and the translator (ii) states that the translator translated all of the document to the best of his ability and (iii) includes the translator’s signature.
Documents translated by well-known local translation agencies are considered the most credible.
Your Personal Statement
Personal Statement
A personal statement is not required since Form I-589 includes space to provide the information that is typically contained in a personal statement. Nevertheless, since it is unlikely that you will be able to tell your entire story in the scant space that Form I-589 provides, you are probably going to need to submit a separate personal statement.
Your personal statement should explain why you left your country and why you fear to return there. The more specific details you provide, the better, as long as the details are accurate. You should also do your best to link the persecution you suffered or fear that you will suffer to the grounds of persecution (race, religion, etc.) that will support an asylum claim. This is where your lawyer can provide you with, particularly valuable assistance.
Personal Supporting Documents
Syrian Woman Holding her Passport
Personal supporting documents are documents that relate to you as an individual (rather than, for example, conditions in your home country or the persecution that a particular group is experiencing there). These documents can be used as follows:
- To establish your personal identity: A copy of your passport, national ID card, birth certificate, etc. will be needed.
- Evidence of your membership in a persecuted group, if possible: A membership document in a political party, for example, or a union membership card, depending on which persecuted group you are a member of, would help greatly. If you are being persecuted due to the color of your skin, on the other hand, your personal presence might be evidence enough.
- Direct evidence of your own persecution, if you have experienced any yet. This might include medical reports, photographs, etc.
Witness Statements
Medical Evaluation
A witness statement can come in the form of a signed letter; however, notarized affidavits are usually best because they better confirm the identity of the witness and because the affidavit format is considered a more reliable guarantee of the truthfulness of the content of the statement. Two important types of witness statements are:
- Statements from fact witnesses, which can corroborate, for example, specific facts about the persecution you have experienced, or your presence at events sponsored by persecuted groups (attendance at a house of worship, for example). Statements from government officials, clergy, family, friends, etc. are all acceptable. You may also need a witness to corroborate the date of your entry to the US (if you entered illegally) so that you can prove you complied with the one-year deadline.
- Medical or psychological evaluations from doctors, psychologists, etc. that can confirm the harm you have suffered.
All of your statements should be detailed, fact-intensive and relevant.
Expert Statements
Human Rights
You might include a statement from, for example, a country-condition expert who is familiar with human rights conditions in your country. Numerous immigration assistance groups can put you in touch with a country condition expert.
Other Types of Documents
Feel free to include numerous relevant newspaper clippings and other mass media documentation that can help substantiate your claims, especially if your name or photograph appears in them. Human rights reports issued by the US government or by a private organization such as Amnesty International can also help support your case.
To win your US asylum claim, you are going to have to prove that you were persecuted in your home country, or that you have a credible fear of persecution if you return. Furthermore, you must have been selected for persecution based on your race, religion, nationality, political views, or membership in a social group. Like just about any other legal term, the word “persecution” carries a meaning that is not exactly coincident with its dictionary meaning.
The Legal Definition of “Persecution”
The legal definition of persecution under US immigration law is rather vague, with one exception (see the quoted text below). Nevertheless, the following circumstances could support a claim of persecution:
- Physical violence or threats of violence, including but not limited to torture;
- Forced labor;
- Slavery;
- Unlawful detention;
- Psychological abuse;
- Economic harm (deprivation of food or shelter, for example)
- You are “forced to abort a pregnancy or to undergo involuntary sterilization, or . . . persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program” This definition applies mostly to citizens of China.
- Other forms of abuse.
The persecution need not be inflicted by a government — being terrorized by vigilantes or drug gangs, for example, can qualify as persecution.
Your Personal Affidavit
To maximize your chances of success, you should submit a separate personal statement with your asylum application (Form I-589) that details the persecution you suffered or your credible fear that you will suffer if you return home. It is submitted in the form of an affidavit (a sworn statement), which means that you could be criminally prosecuted for intentionally including an important false statement.
Your statement should tell your entire story, and it needs to be compelling enough to convince the immigration offer reviewing your case to grant you asylum status. Since your statement needs to be credible as well as persuasive, you should add as many details as you can without falsifying anything. If you write it in a foreign language, it should be accompanied by a certified translation.
For many people, the most difficult part of preparing the personal statement is establishing a connection between the persecution and your membership in a particular demographic, religious or social group. An experienced immigration lawyer can help you draft your personal statement.
Your Testimony
You should know every detail of your personal statement by heart by the time your interview date arrives. Test yourself on the details if necessary, because any discrepancies between your testimony at the interview and the content of your personal statement could hurt your chances.
You are entitled to bring your attorney with you, and you may also bring an interpreter (in fact, this is required if you cannot conduct the interview in English). Remember — anything you reveal to US immigration officials, or to your attorney, will be kept strictly confidential.
Interview Tips
Following are some important tips on how to prepare for and conduct your asylum interview:
- Don’t be late! It makes a terrible impression.
- Prepare yourself physically and mentally. Be sure to get plenty of sleep the night before.
- Rehearse telling your story until you know it by heart. When you tell your story to the immigration officer, however, don’t make it sound like you are reading from a script.
- Tell the whole story — don’t leave out anything of any consequence.
- Be honest! Don’t make up any details you have forgotten, because it could come back to haunt you later.
- Practice good body language. Don’t be afraid to make eye contact with the officer, because avoiding eye contact might convince the officer that you are not being truthful.
- Don’t fake tears, but don’t be afraid to cry at the interview if you feel like it. It won’t be held against you.
- Correct any mistakes that may appear on your application — your interview could be your last chance to do so, and discrepancies between your interview and your application don’t help your chances.
- Above all, retain an experienced immigration attorney to help you prepare and to accompany you to the interview.
Supporting Evidence
US asylum law requires you to at least attempt to gather evidence of the persecution that you fear. Do your best to document your claim extensively. The following types of evidence are commonly used to corroborate asylum claims:
- Doctor’s reports. You might consider visiting a doctor or mental health professional in the US if you exhibit signs of abuse.
- Newspaper clippings and other mass media accounts.
- Human rights reports issued by reputable organizations that describe conditions in your home country.
- Affidavits of witnesses to the persecution of you or of the group of which you are a member.
- Photographs and videos.
- Correspondence.
- Proof of your membership in a particular social group, if you are claiming asylum on this basis
An experienced immigration lawyer can provide you with critical assistance in proving your claim of persecution at all stages of the process.
Asylum is a US immigration status that is based on humanitarian concerns for people who have good reason to fear that harm will come to them if they return to their home countries. If you receive it, you will be allowed you to live and work in the US for an indefinite period of time. Asylum is granted only to people who are present in the US, however. If you are located abroad, you should apply for refugee status, which offers equivalent benefits.
The Legal Standard
Syrian Refugees
To qualify for legal residence under US asylum law, you must first qualify under the legal definition of “refugee”, even though you are present in the US. In other words, you must prove that you are unable or unwilling to return home because of persecution or a well-founded fear of persecution that is based on:
- Your race;
- Your religion;
- Your nationality;
- Your political views;
- Your membership in a particular social group; or
- Your refusal to submit to coercive population control measures such as forced abortion or involuntary sterilization.
That’s a mouthful of legalese. To simplify the foregoing standard below is a clarification of the legal meaning of some of the italicized terms used above.
Persecution: Persecution means the infliction of harm or suffering or a credible threat to your life or freedom. A justifiable fear of imprisonment, torture, rape, murder or execution would likely fit this definition, for example. Persecution doesn’t have to be inflicted by the government — persecution committed by rival ethnic groups, drug cartels or terrorist organizations will qualify.
Well-founded fear: Essentially, “well-founded” fear means that you actually do fear returning home and that your fear is both reasonable and based on objective, provable facts.
Membership in a particular social group: This is a catch-all term meant to cover membership in a group that might be subjected to persecution. You only need to show your membership in this group — you don’t have to show that you are being personally targeted. For example, if teachers at secular schools are being targeted by militant religious groups in your country, you might qualify if you can prove that you were a teacher at a secular school.
Your Chances of Success
Success and Freedom
Asylum claims, never easy to win, are becoming more difficult. In 2018, for example, only 35 percent of asylum claims were approved after six straight years of declining approval rates. Nevertheless, it helps to have a lawyer. According to a study conducted by Syracuse University, over half of the asylum claimants who were represented by attorneys saw their claims approved, while only about 10 percent of unrepresented claimants were successful in winning asylum.
Affirmative vs. Defensive Asylum Claims
Asylum claims can be divided into two types — affirmative asylum claims and defensive asylum claims. Your asylum claim is affirmative if you have not yet been placed in removal (deportation) proceedings; otherwise, it is defensive. Affirmative and defensive asylum claims represent two different paths to the same result.
Timing
Processing Times
Although the total length of the asylum claim process varies greatly from person to person, the general range is between six months and several years. The exact timing depends largely on (i) whether your claim is affirmative or defensive and (ii) the specific facts of your case. Other factors, such as the political orientation of the person who examines your claim, also plays a role.
- If your claim is affirmative, the USCIS must schedule your initial interview within 45 days after your application filing date, and it must reach a decision within 180 days after that date. If your application is rejected, you will be placed in removal proceedings and your claim will be converted to a defensive asylum claim.
- If your claim is defensive, the immigration court system will handle it. You could wait years for a hearing — due to long backlogs, in July 2018 the average wait time was 721 days, and it is likely to have increased since then.
Unfortunately, your asylum claim will be considered abandoned if you leave the US, and if you remain in the US you cannot receive a work permit until at least 180 days after your filing date.
The “Affirmative Asylum” Process
It is best for you to apply for asylum before you are placed into removal proceedings, rather than afterward — overall, your chances of approval are significantly better if your claim is affirmative rather than defensive.
Form I-589
Application for Asylum and for Withholding of Removal
You initiate an affirmative asylum by filing Form I-589 with the USCIS. There is no filing fee, and you can submit your application by mail to the address listed in the instructions.
Fill out the form completely — leave nothing blank. If something doesn’t apply, simply write “N/A” (“not applicable”). Provide information that is as accurate and detailed information as you muster, but don’t try to guesstimate anything, such as an exact date — that could come back to haunt you later.
Supporting Documents
Include as many supporting documents to your asylum claim as you can assemble. These documents might include declarations from friends or family corroborating your story; newspaper articles reporting conditions in your home country; or a report from a medical expert if you are alleging previous physical harm or a psychological disturbance such as PTSD. All non-English documents should be accompanied by a certified translation.
Family Members
African Family
You can apply for asylum on behalf of your spouse and any children who are unmarried and under 21 if they are present in the US, even if they don’t independently qualify for asylum. You will need to prove your relationship with them (a marriage certificate for your spouse, for example), and each of them must complete a separate Form I-589.
The One-Year Deadline
To maintain an affirmative asylum claim, you must submit your application within one year of the date of your most recent arrival in the US. Limited exceptions exist, for example, if:
- You have been in a continuously valid visa status ever since your entry to the US (on a student visa, for example);
- You can show changed circumstances that affect your eligibility (recent political instability in your home country, for example); or
- You can show extraordinary circumstances that justify your delay in submitting your application.
Keep in mind that if none of the foregoing exceptions apply and you entered the US illegally, proving your compliance with the one-year deadline could be tricky.
Detention
U.S. Flag Behind Barbed Wire
You almost certainly will not be detained if you file an asylum claim before being placed in removal proceedings.
The Interview
If you file an affirmative asylum claim, the USCIS will send you an interview date within 21 days after the date that you submit Form I-589. You will need to bring originals of all of the supporting documents you submitted with Form I-589, along with their certified translations. Family members whom you included in your application must attend the interview with you, and you may bring witnesses as well as an interpreter. You can also bring your attorney with you.
Your interview will last at least an hour. Stay calm and be honest, even if the officer doesn’t seem to believe your story. Your attorney will also have the chance to make a short statement on your behalf, and the officer may ask him some questions as well.
Consequences of Denial
Denial Road Sign
If your affirmative asylum claim is denied by the USCIS, you will be placed in removal proceedings. Functionally, this means that your affirmative asylum claim will be converted into a defensive asylum claim, and you will get another chance to prove that your claim is valid, this time at a hearing before an immigration judge.
Pressing Your Asylum Claim in Immigration Court: The “Defensive Asylum” Process
You could end up in defensive asylum proceedings in one of three ways:
- You filed an unsuccessful affirmative asylum claim, and your case was referred to an immigration judge by the officer who rejected your affirmative asylum claim;
- You were placed in removal proceedings (perhaps after entering the US illegally or perhaps after overstaying your visa), and you subsequently filed a defensive asylum claim; or
- You tried to enter the US without a proper visa, claimed asylum at the port of entry, and immigration officers preliminarily determined that your claim was credible (thereby preventing you from being removed immediately without a hearing)
Detention
Police – Arrest – Detention
If you applied for asylum after you were placed in removal proceedings, you will probably already be in detention, and you might remain there until your claim is decided or you agree to return home. If you claim asylum at a US port of entry (at an airport, for example), the officer is legally required to detain you.
- If the officer preliminarily determines that your claim is “credible”, you will still not be released unless immigration officials determine that you are unlikely to skip your immigration hearing and that you are not a danger to the public. Even then, you will probably have to post bail and your whereabouts might be monitored by a GPS ankle bracelet.
- If you claim asylum at a US port of entry and your claim is judged “not credible” by US immigration officials, you will remain in detention until you are removed from the US (very soon afterward following expedited removal proceedings), and you will have no chance for an immigration court hearing.
Denial Rates
Once your case makes it to immigration court, the harsh reality of asylum claims is that denial rates vary drastically from judges to judges, from location to location and from year to year. The strictest judges deny 99 percent of all claims that come before them, while the most lenient judges, deny only 15 to 20 percent of the claims they adjudicate.
Although overall approval rates are now under 20 percent, this statistic is misleading — many cases are dismissed because applicants fail to show up at their hearing, while other applicants voluntarily withdraw their claims.
Immigration Court
Courthouse
Immigration hearings work a lot like criminal trials, except that you don’t enjoy some of the constitutional protections that you would enjoy in a criminal trial. Although you don’t have the right to a government-funded attorney, you may bring one with you if you are willing and able to pay for legal services on your own.
You can bring witnesses, and you will likely be questioned along with your witnesses. You will have a chance to present your case to the judge, either personally or through your lawyer. Either you or your lawyer can submit a brief to the court in support of your claim.
Appeals
If the court orders you removed, you can appeal the decision to the Board of Immigration Appeals (BIA). The US Attorney General is entitled to intervene in your case and overrule the BIA; however, this is rarely done. If the BIA rules against you, you can appeal to the US Court of Appeals. Very few claimants win at this level, however — the approval rate is about eight percent. It is also possible to be deported while your appeal is still pending.
Special Case: Marriage During a Pending Asylum Claim
Marriage
Some asylum applicants marry a US citizen while their asylum claim is pending, and then abandon their asylum application in favor of a marriage-based immigration petition. Although approval rates for marriage-based immigration are higher than approval rates for asylum applications, marrying a US citizen under these circumstances is likely to cast doubt on the legitimacy of the marriage.
Furthermore, if you entered the US illegally in the first place, you will not be able to adjust your status to a permanent resident without leaving the US and applying from abroad, even with a US citizen spouse. Leaving the US could be problematic, however, if you have spent more than 180 days in the US in unlawful status. You could be barred from returning to the US even if you marry a US citizen. It is usually better to marry first and never apply for asylum in the first place.
Special Case: Fraudulent and Frivolous Asylum Claims
Take care before you file an asylum claim. If your asylum claim is found by being fraudulent or “frivolous” (completely lacking in merit), you could be ruled permanently ineligible for any U.S. immigration benefits — even a visa based on other grounds, such as student status.
Permanent Residence and Citizenship
Once you are granted asylum, you must wait an additional year to apply for permanent residence. Your ability to apply for permanent residence is not guaranteed, however — if conditions in your home country improve during the one-year waiting period, you could be sent home instead. If you do receive permanent residence, however, you will be eligible to apply for US citizenship four years after the date that your green card was issued.