25. Affirmative Application Process
The information contained herein is for reference only and may not be up to date. It does not constitute legal advice. You should always consult an attorney regarding your matter.
An applicant can file for asylum either affirmatively or as a defense to removal proceedings. When an applicant is filing affirmatively, one of the primary roles of an attorney is to help the applicant understand the relative strengths and weaknesses of their case and to help them make a decision about whether or not to apply for asylum.
Once the applicant is in removal proceedings, the potential risk of applying affirmatively – being removed (deported) – already exists, so as long as the asylum claim is colorable, there generally is no reason not to apply. As discussed elsewhere (See Sections #6 and #7) when an applicant files for asylum, they generally file simultaneously for withholding of removal and for relief under the Convention against Torture. The latter two forms of relief can, however, only be granted by an Immigration Judge.
25.1 The Affirmative Asylum Application Process – When to File?
Often, asylum applicants don’t seek counsel until they are close to the one-year filing deadline, and an attorney is left scrambling to put the “barebones” application (see Chapter 14) together before the anniversary of the applicant’s last entry. In some cases, however, an attorney and client have some strategic decisions to make about when to file for asylum.
If the applicant is in lawful status when they come to see you, and is likely to remain in lawful status for the next several years (e.g., if they are a freshman in college), you may have to decide whether it’s best to apply quickly or to wait until the applicant is out of status. If the applicant is still in lawful status at the time the Asylum Office decision is issued, they will either received a Recommended Approval or a Notice of Intent to Deny. (See Section #26.8.2.); if the application is denied by the Asylum Office, there is no appeal of the denial. The applicant can wait until their lawful status expires and then try to renew their application for asylum, but, as a practical matter, it can be difficult to get Citizenship and Immigration Services (CIS) to accept the filing of a second asylum application.
Many asylum applicants feel more comfortable filing for asylum while they’re still in lawful status, because the idea of possibly being placed in removal proceedings is terrifying. It is important that the asylum-seeker understands, however, that even if they are in lawful status, their immigration possibilities in the United States will be affected by the application. Applicants for many non-immigrant visas (most notably tourist and student visas) most overcome a presumption that their intent is to remain in the United States permanently. Thus, if the applicant loses their asylum application and returns to their country of origin before the expiration of their lawful status here, they will likely find it impossible to obtain another visa to the United States.
Practically, however, current affirmative asylum processing backlogs are so long that, unless the applicant has several years of guaranteed lawful status ahead of them, they will be out of status by the time their application is heard. The above considerations therefore apply to very few cases; most of the time, the applicant’s I-589 can be filed quite soon after you meet with them.
25.2 Affirmative Filing and Scheduling
An applicant can file for asylum affirmatively. This process is initiated by sending two copies of form I-589 (with minimal supporting documentation: see Chapter 23) to the CIS Service Center which has jurisdiction over the region in which the applicant resides. (see page 10 of the I-589 instruction packet). It is generally best to send the application via overnight delivery so that it is possible to prove delivery of the application if an issue ever arises as to whether or not the application was properly filed. It is not necessary to send the remaining components of the application (declaration, corroborating evidence, and country conditions information) immediately—and in fact, it is preferable not to do so because they can be assembled while the applicant is waiting for an interview, the scheduling of which is initiated by simple submission of the “barebones” I-589.
If an attorney is representing the applicant on the application, the attorney must also file a Notice of Appearance (Form G-28), preferably on blue paper. When there is an attorney of record, CIS is supposed to send all notices about the case to both the attorney and the applicant. Sometimes, however, it only sends them to the client or to the attorney instead of both, so it is important for both of you to contact one another whenever either of you receives CIS correspondence.
After the I-589 has been filed, the local Asylum Office will schedule the applicant for an interview. There are eight Asylum Offices throughout the United States, and every one of them is backlogged: see http://www.uscis.gov/humanitarian/refugees-asylum/asylum/affirmative-asylum-scheduling-bulletin for an indication of where each office is in working through its backlog. The office with jurisdiction over your client’s claim will be listed on the receipt that will arrive in the mail 2-3 weeks after the I-589 is filed.
Your client will then (eventually) be scheduled for an interview at that Asylum Office, with the scheduling determined by the date on which the I-589 was filed (see the link above for scheduling information). Applicants who live far from their local Asylum Office may be interviewed by an Officer who “rides circuit” to a location near them. These “circuit ride” cases can take more or less time to be scheduled than do interviews at the local Asylum Office.
25.2.1 Adjourning the Interview
Once an interview date issues, you and the client will usually receive only about 3 weeks’ notice. Having waited so long for an asylum interview, it is generally best not to adjourn the interview unless it is absolutely necessary because if the request is not granted, the asylum application could be denied, and your client could be placed in removal proceedings without having an interview. If absolutely necessary, however, it is possible to adjourn the asylum interview for good cause. If an attorney has recently taken on a case, has a scheduling conflict, or needs more time to prepare, they can request that the interview be postponed. The best way to do this is to send a letter to both the local Asylum Office and the Service Center via overnight courier and to fax a copy of the letter to the local Asylum Office. If there is no response, it is a good idea to call the local Asylum Office and speak with a supervisor as well.
Generally, the adjournment request will be granted, but you will not receive notice until a couple of days before the scheduled interview. Because asylum interviews are scheduled so quickly, you will probably only be given a short adjournment (2–3 weeks) unless there is a good reason for a longer adjournment (e.g. if your client is in the hospital).
25.2.2 Requesting Leave for More than One Attorney to Attend the Interview
Most Asylum Offices only want one attorney present for the asylum interview. If you have been working on the case in a pro bono team, you may want more than one team member to attend. It may be possible for two attorneys to attend the interview, but it is very unlikely the Asylum Office will allow more than two attorneys to be present. The reason for this is partly because the interviews are conducted in the Officers’ offices and therefore space is limited. Also, because the interview is non-adversarial, the Officer probably doesn’t want to feel overrun by a large team of attorneys.
If you want a second attorney to attend the interview, you should write a letter to the Asylum Office director at least a week before the scheduled interview date. You send the letter via overnight courier service and also fax it. If your client is fluent in English and does not need an interpreter, you should state this in the letter, since that frees up a chair in the Officer’s office. You may hear from the Asylum Office before the interview date granting your request. If you have not received a response by the interview date, bring copies of the letter with you to the Asylum Office and if the Officer does not want to allow the second attorney in, show them the letters, and they may relent.
25.3 Preparing for the Interview
The most important preparation you will do for the interview is working with your client to prepare the best possible asylum declaration. This will focus the issues in the case and help the client to understand which experiences and incidents are most relevant to their claim.
It is a good idea to go through one or more “mock interviews” with the client. If at all possible, have another attorney from your office who is not familiar with the case play the role of the Asylum Officer. This is good practice for the client to try testifying in front of someone who they don’t know and will also provide a fresh listener for the case who can tell you if any aspects of the testimony are unclear or do not sound credible.
By the time the client has been through multiple meetings with you and has worked on their declaration for weeks or even months, it may be difficult for them to make their story sound “fresh.” It’s important that you counsel your client to listen closely to each question and to really relive the experiences they describe. Sometimes clients become so accustomed to retelling their stories to the attorney that they begin to sound rote. Tell your client that even though it’s natural to try to suppress painful memories and to not want to relive them, it’s crucial to their case that their emotions and fear come through at the interview. If the client feels like crying, they should not suppress that at the interview.
It is also always a good idea to ask your client if there is any question that they fear the Officer may ask them. It is better to address your client’s fears and formulate a strategy for dealing with them than to allow your client to feel fearful about a particular question which may or may not be answered.
If there are any challenging issues in your case (See Section #11), be sure to prepare your client completely about the best way to address these issues. It is best for the client to address difficult issues (i.e. one year deadline issues, criminal issues, return trips to his country) head on, honestly, and on his own terms, rather than hoping for the unlucky possibility that the Asylum Officer won’t bring them up.
You should tell your client to re-read their I-589 and his declaration, paying particular attention to dates. You can also prepare a timeline (see next section) and give that to your client as a document where all relevant dates and incidents are in one place for easy reference.
25.4 Preparing a Timeline
Sometimes after preparing a lengthy declaration, the applicant’s story can feel overwhelming to the attorney and the client. It can be very helpful to boil the story down to a single page timeline. The timeline should include all essential information in chronological order, with dates, that you want to be sure your client testifies about. You can have the timeline open in your file during the interview so that if the Officer asks questions out of chronological order, you can track those important incidents that your client has not testified about for your own follow up questions at the end of the interview.
It can also be helpful to give the client a copy of this timeline as a final preparation tool before the interview. Once the essence of the case can be boiled down to a single page or less, the entire case feels much more manageable in size.
25.5 Sample Timeline
The following is a sample timeline based on the sample declaration. (See Section #19.) The timeline is not submitted to CIS, and you don’t have to follow this format or make one at all unless you find it useful.
Sample Asylum Time Line for Joao Doe
2/23/75 – Born, Sao Bernardo do Campo ca. 1985 – Beaten up and kicked like a soccer ball 1991 – 16 y.o., first same sex sexual experience w/ Paulo; resulted in blackmail at school 1993 – Family moves to Sao Paulo 1993 – Ridiculed in class; drops out of school 1993/1994 – Meets Armando, first real boyfriend 1996 – Friend Claudio beaten by police; they play “telephone” with hands beating ears Summer 1996 – Forced to perform oral sex at gunpoint; later learns perpetrator was a cop 3/97 – Cops arrest clt. in gay plaza; beaten w/ cacete; raped by criminals in cell 4/97 – Walking down street w/ gay friend, clt. runs away, learns friend was abused 2/98 – Rio, Carnival, police forced him to perform oral sex 6/01 – Stopped by police outside gay bar, runs away 7/7/01 – Arrived in U.S. 7/18/05 – HIV dx.
25.6 Attending the Interview
Most Asylum Offices are in inconvenient locations. Neither the New York nor New Jersey office is easily accessible by public transportation. It is best to make a plan with the applicant about how they are going to get to the interview and, if possible, travel to the interview together. If an applicant arrives more than thirty minutes late, the interview may be rescheduled, or the application may be denied.
Despite the strict rules about being on time for the interview, generally an applicant will have to wait an hour or two (or more) after checking in at the Asylum Office before being interviewed. The day of the interview quickly turns into a long day in the middle of nowhere, so it’s important that everyone attending eat a good breakfast (no food is allowed in the waiting room) so that they remain alert for the interview. It’s also helpful to recommend that the applicant bring a magazine for the long wait ahead.
25.6.1 Attire for the Interview
The applicant should dress comfortably but respectfully for the interview. The applicant does not have to wear a suit but should also not wear jeans or a t-shirt. The applicant should dress in a manner that feels comfortable. While some advocates recommend that their gay clients “fem it up” or that their lesbian clients “butch it up,” it is best for the client to dress as they generally feel comfortable dressing. The interview process will be stressful enough for the applicant without the applicant feeling like they have to pull off some sort of a disguise.
25.6.2 Interpretation at the Interview
Asylum Offices do not provide official interpreters for asylum interviews. Thus, if the applicant is not proficient in English, they will have to supply their own interpreter. There is no requirement that the interpreter be a professional interpreter. The interpreter will, however, have to bring an identification document (such as a passport or driver’s license) and must be in lawful immigration status.
If the applicant is proficient but not entirely fluent in English, it is important to discuss with them before the interview whether or not they require an interpreter. Many applicants are so nervous about the interview that even though they speak English well, they feel more comfortable having an interpreter present. For some applicants, too, it is easier to speak about events that happened in their countries of origin in the language in which they experienced the events. On the other hand, even with the best interpreter, there is always some meaning that is lost in translation. It will also be more difficult for the Asylum Officer to experience the emotions of the applicant’s words as they describe past incidents of mistreatment if the Officer is listening to the interpreter rather than the applicant. Deciding whether or not to use an interpreter is therefore an individualized decision which you should fully discuss with the applicant.
Many English-proficient applicants would like to have an interpreter present to fall back upon if they don’t understand a particular question. Different Asylum Officers handle this request differently. Some Officers will allow this, but many (if not most) will require the applicant to conduct the entire interview in English or in the applicant’s native tongue but will not permit the applicant to go back and forth. In any event, if the applicant brings an interpreter as a fallback position, they should know in advance whether or not they plan to use the interpreter if the Officer insists on using one language only.
When the applicant does use an interpreter at the interview, it is important that the interpreter be familiar with the applicant’s story. It is generally helpful if the interpreter can read the applicant’s declaration in advance of the interview. The interpreter should also accompany the applicant to interview preparation sessions with the attorney so that both the interpreter and applicant feel comfortable that they understand one another.
25.6.3 Requesting an Officer of a Particular Gender
Most Asylum Offices will allow an applicant to request an Officer of a particular gender. The offices will try to accommodate such requests if possible. Many LGBTQ asylum applicants have suffered sexual abuse or rape as a result of their sexual orientation or gender identity, and it may be much more difficult for the applicant to recount the details of that abuse to a government official of the same gender as the persecutor. On the other hand, applicants who come from cultures with strict gender roles and segregation may find it very difficult to discuss issues of sexual orientation or gender identity with a member of the opposite sex. Many applicants will feel equally comfortable (or uncomfortable) telling their stories to anyone of either gender, but it is always a good idea to discuss with the applicant the possibility of requesting an Officer of a particular gender.
25.7 The Asylum Interview
25.7.1 The Asylum Officer’s Approach
Asylum Officers have a great deal of discretion in how they conduct the asylum interview. Some Officers make a point of being warm and welcoming, others immediately lay down rules and make the interview as business-like as possible. It is never possible to know before the interview exactly what the process will be.
Asylum Officers do not receive the asylum applications until the morning of the interview, after the applicant has checked in. Many Officers will take time before calling the applicant in to review the file (hence the long wait in the waiting room). Other Officers will barely skim the file before calling in the applicant, figuring that they will first get the oral testimony and then go back and review the file. In any event, you should not expect that the Officer will have much familiarity with the application.
Most Officers will conduct the vast majority of the interview themselves, leaving time at the end for you to ask follow up questions and/or make a summation of the case. On rare occasions, an Officer will allow a representative to question the applicant directly as if the case were in court. Some Officers will allow you to rephrase questions which the applicant doesn’t understand or to draw the Officer’s attention to relevant documents in the file. Other Officers do not allow the attorney to speak at all until the conclusion of the interview. There is no way to know in advance what style the Officer will have, so it is important for you to be flexible. You can try to participate somewhat in the interview until you are told directly not to do so.
If you have taken the case pro bono, you should let the Officer know this. Asylum Officers appreciate the work that pro bono lawyers do, and will also be more likely to fully explain the process if they know that the attorney is not an immigration “regular.”
If (fortunately relatively rarely) the Officer asks questions which are inappropriate or assumes an abusive or homophobic demeanor, you should tell the Officer that her behavior or question is inappropriate. If the Officer continues with inappropriate questioning, you should ask to stop the interview and speak with the Officer’s supervisor. Sometimes supervisors will sit in on interviews, other times the interview can be reassigned to another Officer.
25.7.2 Questions at the Interview
Again, different Officers have different styles of questioning. Many Officers begin by going through the biographical background information on the application and then, eventually, move on to the substantive questions on the I-589 form, asking the “essay questions” almost word for word as they appear on the form. Other Officers will follow along more directly with the declaration and ask the applicant to recount problems that she had chronologically. Often the Officer’s questioning will result in the applicant telling their story out of chronological order. It is therefore important for you to listen carefully and to ask follow up questions about any significant incidents which the applicant did not testify about. Creating a timeline before the interview can be very helpful in tracking the applicant’s answers. (See Section #24.4).
If there is a one year filing deadline issue (See Section #5) or any other thorny issues (See Section #11) in the case, it is important to prepare the applicant well for discussing these issues. Since the attorney will generally not be guiding the applicant through direct examination, it is crucial that the applicant be able to articulate on their own why they waited two years to file for asylum or once shoplifted a pair of pants.
There are generally no big surprises at the interview. The applicant should be prepared to testify in detail about everything that is in their asylum application. It is important to remember that the applicant must prove that they really are LGBTQ/H, so they should be prepared to testify in detail about when he first realized they were LGBTQ/H, their “coming out” process (if any), and any significant romantic relationships they had (if any). Of course, the most important part of the testimony concerns the persecution the applicant suffered in the past and/or fears in the future. It is crucial to the claim that the applicant’s emotions come through during this testimony. After weeks or months of preparing the declaration with the representative, the applicant’s answers to questions about past abuses may begin to sound rote. You should instruct the applicant about the importance of listening closely to the Officer’s questions and really reliving the abuses that they suffered there. Difficult as this may be for applicants, if they can testify compellingly at the interview, this may be the last time that they have to retell the story of their persecution.
Most asylum interviews last between one and two hours. If an interpreter is needed, the interviews tend to be closer to two hours.
The Asylum Officer will have to review their decision with their supervisor before issuing it. Thus, Officers often focus on areas of questioning which they think their supervisor will raise. If you see that there is a particular issue of concern to the Officer (e.g., multiple return visits to the country of persecution), it can be very helpful to the case for you to sum up and offer an explanation which the Officer can then give to their supervisor. Likewise, if there’s a crucial piece of evidence that the Officer wants that has not yet been supplied (like a medical record from the applicant’s home country), you can courier this document (the sooner the better) to the Asylum Officer during the two-week period before the decision is issued.
25.8 The Decision
Two weeks after the interview (usually: see below), the applicant must return to the Asylum Office to pick up the decision. There is no substantive exchange with the Officer on this date; the applicant literally receives a piece of paper at the check-in window, so there is no need for the attorney to accompany the applicant. In some situations, the case must be referred to Asylum Headquarters before the decision is issued. This is often true for cases filed by Mexican applicants, domestic violence cases, and others where the Asylum Office wants guidance. Sometimes, seemingly for no reason, a decision is not ready after two weeks. At times it can take several months to receive a decision. This lengthy delay does not seem to be an indicator that the case will be denied or approved, and, other than writing follow up letters to the Asylum Office, there’s not much an attorney can do to speed the decision-making process.
25.8.1 Recommended Approval
If all goes well, the applicant will receive a brief letter explaining that the Asylum Office has recommended approval of the application. Congratulations! You’ve won your case. This is a recommended approval, rather than a final approval, pending necessary background checks to confirm the applicant’s identity and that the applicant has no criminal or terrorist background which would preclude a grant to asylum. Once the applicant receives recommended approval, they can apply for an employment authorization document under the “asylum pending” ((c)(8)) category. Once they receive employment authorization, they can apply for a social security card. This first social security card will be restricted with the notation “valid only with INS work authorization.”
It generally takes around six months (but sometimes as long as 18 months) for the applicant to receive the final approval notice in the mail along with an I-94 which says “asylee” status granted for an “indefinite” period of time. When the asylee receives the final approval, they can work lawfully without having to have an employment authorization document. They can also obtain an “unrestricted” social security number. One year after the final approval date, the applicant can apply for legal permanent residence. (See Section #31.8).
25.8.2 Notice of Intent to Deny
If the applicant is still in lawful status at the time the Asylum Office issues the decision, and if the Asylum Office does not believe that the applicant has met their burden of proving their case for asylum, the applicant will receive a Notice of Intent to Deny (NOID). The NOID is a detailed letter which explains the Asylum Office’s reasoning for denying the application. The applicant has 16 days in which to respond to the NOID in the hope of overturning the decision.
You should always submit a response to the NOID. As with other aspects of the asylum interview, the rules of response are flexible. You can write a brief explaining why, based on the record submitted and the testimony, the conclusions the Officer drew were incorrect. You can also submit additional evidence. For example, if the NOID states that there was not sufficient evidence of objectively reasonable fear because the country conditions information is mixed, it can be crucial to submit an expert affidavit that directly addresses the specific fear that the applicant has.
It is possible to obtain more time to respond to a NOID if there is a good reason to do so. The attorney can write a letter to the Asylum Officer requesting additional time (e.g., thirty days) to respond. You should follow up by calling the Asylum Officer to make sure that the request was granted. If a response is not timely submitted to the NOID, the denial becomes final.
There is no set time frame for when the Asylum Officer will respond to the NOID rebuttal. It may take several weeks or longer. The Officer can change their mind and recommend approval or issue a final denial. If the case is denied, there is no appeal from the denial. The applicant can, however, reapply for asylum in the future after falling out of legal status and then use the appeal procedure discussed below.
The Asylum Office does not have jurisdiction to decide withholding or CAT claims. These claims can only be heard in Immigration Court. (See Section #26.1 for When to File)
25.8.3 Referral to Court
If the asylum application is not approved by the Asylum Office and the applicant is not in lawful status, they will be served with a referral letter which will very briefly outline the reasons that the case was not approved, and a Notice to Appear (NTA) in Immigration Court. The NTA is the charging document which initiates removal proceedings (formerly known as “deportation proceedings”) against the applicant. The NTA will contain charges against the applicant as well as a date and time to appear in Immigration Court (or “TBD,” with a subsequent, specific NTA arriving in the mail). Failure to appear in Immigration Court will result in an in absentia removal order being issued against the applicant. As discussed below, the applicant can renew their applicant for asylum before the Immigration Judge. Being referred to Immigration Court does not stop time from accruing towards the 180 days needed to be eligible for an Employment Authorization Document. (See Section #31).
This Manual is intended to provide information to attorneys and accredited representatives. It is not intended as legal advice. Asylum seekers should speak with qualified attorneys before applying.
The information contained herein is for reference only and may not be up to date. It does not constitute legal advice. You should always consult an attorney regarding your matter.
This handbook is intended for use by pro bono attorneys and immigration attorneys working on LGBTQ/HIV asylum cases.
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