By Linda Nwoke 

In the complexity of global politics, the pursuit of safety and freedom often leads many people on a perilous journey from persecution and oppression to seeking refuge in another country. Various factors, such as an unwavering belief in democracy and human rights or ideas, can cause them to become subject to persecution in their native land.

For these individuals, there is light, as the United States asylum process protects those who fear persecution on religious or political grounds through the concept of political asylum. However, applicants must qualify for asylum in the United States either through the affirmative process or the defensive approach.

Qualifications for Asylum

An asylum applicant must show evidence that their fear of persecution is not baseless. There must be proof to support your claim before the immigration court. The application will only be allowed if the applicant meets the standard definition of asylum.

Secondly, the applicant’s presence is required at the entry port in the United States or a port of entry. The asylum-seeking process is lengthy, with many cases denied by asylum officers and immigration judges.

According to attorney-at-law Brian Figeroux of Figeroux and Associates, “If you want to file for political asylum in America, you must still get yourself to the border, but they have special processes.”

Affirmative Asylum Processing with U.S. Citizenship and Immigration Services (USCIS)

Under the affirmative asylum process, the applicant must be in the United States to apply, irrespective of how they got into the country or their current immigration status. The applicant must make an application within twelve months of their last arrival in the country.

“The people with their visitor’s visas are the first batch that comes here, apply for political asylum within a year of entering the U.S., or in some cases, they apply for TPS, or temporary protected status, which sometimes may last for decades,” says Mr. Figeroux.

Furthermore, they might undergo an interview with an asylum officer, and upon approval, they become asylees. However, if denied, their case may be referred to an immigration court for removal proceedings.

If they failed to file within the one-year arrival period, perhaps due to factors like a lack of legal assistance, or instability, they would need to present evidence of the cause of the delay. This situation can only be considered if it falls into some categories and is treated on a case-by-case basis.

The Impact of Not Filing for Asylum Before the Year Deadline

Migrants who cannot meet the prescribed criteria for lateness could risk having their asylum claim denied. However, there are exceptions to the one-year deadline for filing an asylum application.

Note that the one-year filing deadline starts when the asylum applicant enters the country. Failure to adhere to the ‘entrance date guideline’ makes the case difficult to defend. There is a higher possibility of denial and potential deportation.

However, three exceptions for extraordinary circumstances, considered on a case-by-case basis, permit individuals to file asylum claims after the one-year deadline.

Change of circumstance: such as when the applicant’s home country becomes no longer safe or harmful to return to for political reasons. This can be because they criticize their home country online or introduce a new law in their country of origin that could harm many people.

Extraordinary circumstances: such as serious illness, physical or mental disability, or legal or procedural impediments, are some examples that can be considered exceptional circumstances that can cause a delay in the filing of the application.

Minor children: Those under 18 qualify for an exception because of the legal complexity involved in the filing process; however, upon turning 18, they are expected to file their asylum application.

Defensive Asylum Processing with EOIR

When an asylum applicant’s case is deferred to an immigration court for removal proceedings, it becomes a defensive asylum claim as the migrant seeks a defense against deportation or removal from the United States. For the processing to be defensive, the individual has to be in removal proceedings in immigration court based on the Executive Office for Immigration Review (EOIR).

The process is done in two main ways:

• First is being referred by USCIS to an immigration judge after being deemed unqualified for the affirmative asylum process, alternatively,
• The applicant is in removal proceedings as a result of the following:

-Being arrested within the USA or at a port entrance without proper documentation or having been found to have violated the rules of immigration status; or being apprehended by U.S. Customs and Border Protection (CBP) trying to enter the United States without proper legal process, placed in the expedited removal process, and discovered to have a credible fear of torture or persecution by an asylum officer.

They assert their eligibility for asylum during immigration court proceedings before an immigration judge. If the judge denies their claim, they may be able to appeal the decision.

The defensive asylum approach is activated if the asylum seeker is detained by U.S. Customs and Border Protection (CBP) officers. This happens when the migrant enters the United States without a visa but seeks asylum. It automatically puts them in deportation proceedings because they entered the country without permission, such as a visa.

However, if denied, the following steps should be considered for a possible reversal of the decision.

Tips on Next Steps when Asylum Application is Denied 

There are a few opportunities to reconsider the decision and remain in the United States. First, consider hiring an experienced immigration attorney for guidance through the process.

Asylum Office Denial 

If the asylum application was voluntarily submitted at an immigration office, an asylum officer will review the case, an interview will be conducted, and a letter stating approval or denial will be sent to confirm the decision. If denied, it goes to an immigration court for review by an immigration judge, and a decision is given after the hearing.

Denial by the Immigration Court

Upon denial by the immigration judge, the case can be presented by mail to the Board of Immigration Appeals (BIA) within thirty days of the immigration judge’s decision. The board reviews the applicants’ written evidence and their hearing transcript at the court.

The applicant’s attorney drafts the paperwork, including a brief for an appeal. The process takes about a year for a decision to be reached.

BIA Denial

If the BIA denies the request, another appeal is filed through the federal U.S. Circuit Court of Appeals through the attorney. An applicant needs a legal brief explaining why the BIA made the wrong decision. After the oral arguments, the court can reverse the denial or return the case to a judge.

Denied by the U.S. Court of Appeals

If denied again, there is one last chance at the court of appeals before the Supreme Court, which may hear the case after the lawyer submits a writ of certiorari. Notably, the U.S. Supreme Court is not obligated to consider the issue. They only attend a limited number of cases throughout the year.

Value of Hiring an Experienced Attorney for Your Asylum Appeal

Undeniably, the asylum appeal process is complicated and requires a professional to guide you. Ultimately, the lawyer you hire does make a difference. You can hire an experienced attorney to help with your immigration case. Contact a lawyer at 855-768-8845 or visit www.askthelawyer.us to schedule an appointment.

  asylum, asylum policy, Board of Immigration Appeals, immigration court