Applying for Asylum

Asylum in the United States is a complex and lengthy web of laws, procedures, and governmental agencies that may seem daunting to approach. There are many misconceptions about asylum and who is eligible to apply. To qualify for asylum, applicants must first demonstrate a “well-founded” fear of persecution based on one of five specific protected grounds—race, religion, nationality, political opinion, or membership in what is called a “particular social group” (PSG). 8 U.S.C. § 1101(a)(42)(A). Of these grounds, PSG membership is most open to interpretation and thus provides the most accessible basis for asylum claims based on sexual orientation, gender identity, or gang-based persecution. Seiko Shastri, Beyond Chevron Deference: A Way Forward for Asylum Seekers, 105 Minn. L. Rev. 1541 (2021).

Asylum seekers have two primary paths to claim asylum - affirmative and defensive. The defensive process is for individuals already placed in removal proceedings with the immigration court and the affirmative process is for individuals not in removal proceedings. Defensive applicants already in removal proceedings may apply for asylum by filing a Form I-589 Application with an immigration judge at the Executive Office for Immigration Review (EOIR). Asylum in the United States, American Immigration Council (2022). In other words, asylum is applied for “as a defense against removal from the U.S.” Id.

The affirmative process is procedurally similar, as an applicant not in removal proceedings may proactively apply for asylum with the U.S. Citizenship and Immigration Services (USCIS), a division of the Department of Homeland Security (DHS). Obtaining Asylum in the United States, US Citizenship and Immigration Services (updated 2022). Affirmative applicants must be physically present in the U.S. and file a Form I-589 Application within 1 year of the date of their last arrival, not including the limited exception in which the applicant filed within a reasonable amount of time given “changed circumstances that materially affect eligibility for asylum or extraordinary circumstances relating to the delay.” The One-Year Filing Deadline, Immigration Equality Asylum Manual. If the USCIS asylum officer does not grant this application, the applicant is referred to removal proceedings where they may renew the asylum request through the defensive process. Id.

Under this framework, asylum is a distinctly complicated and intricate process for the thousands of hopeful applicants who seek this form of protection every year. Lengthy processing delays, unforeseen financial fees, varying legal and judicial standards, and a lack of accessible legal counsel are a few issues highlighted by the mechanisms in place to apply for asylum. Shalini Bhargava Ray, Immigration Law’s Arbitrariness Problem, 121 Columbia L. Rev. 2050, 2093 (2021). While the asylum process may be difficult to understand, access to legal assistance through nonprofit and legal service organizations as well as private immigration attorneys is crucial. The Importance of Legal Aid for Asylum Seekers, The Borgen Project (2021).

On a global scale, the Afghanistan refugee crisis has recently drawn attention to the complex workings of the U.S. immigration system. More than a year after the U.S. military withdrew from Afghanistan, thousands of Afghan refugees have resettled in the U.S. through varying immigration paths, including asylum. Aline Barros, Tens of Thousands of Afghans Work Their Way Through the US Immigration System, voa News (2022). Several of these Afghan refugees eventually settled in Wausau, Wisconsin through the assistance of nonprofit and refugee resettlement organizations. Diane Bezucha, Wausau begins welcoming new Afghan refugee families, Wisconsin Public Radio (2022). In May 2022, three Zimmer Law Group Attorneys drove to Wausau for asylum consultations in collaboration with the Ethiopian Community Development Council (ECDC). Through this process, the attorneys were able to initiate and file asylum applications for many of the Afghan nationals with whom they met. This partnership highlights the vital collaboration between service organizations and legal aid that can make the ultimate difference in the lives of those seeking asylum.

 Minnesota is also home to many organizations dedicated to supporting asylum seekers, and several of these organizations are listed on the Zimmer Law Group webpage within the Non-Profit and Local Government Resources page. Each asylum case is different, as the unique story of each asylum seeker paints a picture of varying challenges and issues. For decades, Zimmer Law Group has stood with and guided asylum seekers on their journey to seeking asylum, and if you or a loved one may qualify for asylum, please contact us for a personal consultation.