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.
Last updated: June 3, 2020
Filing for asylum is a very serious decision and one should consult with an attorney before filing. If one files on their own, please keep a copy of every piece of paper submitted as a record. Also send the application by certified mail (or through a delivery service such as FedEx or UPS) so that a tracking number is given for the package. This is sometimes the only way to prove that one filed for asylum on time.
The asylum application usually consists of at least:
- Immigration Form I-589
- A declaration (detailed personal statement by the applicant)
- Corroborating documents (medical reports, police reports, letters from witnesses, etc.) to back up the applicant’s story
- Country conditions documentation (human rights reports, newspaper articles, and in some cases reports from expert witnesses) demonstrating how the government treats LGBTQ or HIV-positive people in the country of origin
There are two ways for file for asylum, affirmatively and defensively. Withholding of Removal and Convention Against Torture relief can only be applied for defensively.
Affirmative Application
If an applicant is present in the United States and is not in removal proceedings, they can file for asylum affirmatively with USCIS. After an application is filed, USCIS will issue a receipt notice to let the applicant know that the document was properly filed. If the applicant does not receive a receipt notice within about 30 days, the application may not have been properly filed. Therefore, if an applicant does not receive a receipt notice, they should review their application, ensure that all the instructions for the application have been followed, and resubmit the application to USCIS. It is important to remember that a properly filed application must be received by USCIS before an applicant’s one-year anniversary.
There are currently thousands of asylum applications pending with USCIS. This has created a large backlog of cases that has caused long delays in scheduling interviews. A few years ago, USCIS would schedule interviews for applicants who had waited the longest. However, that is no longer the case. As of January 29, 2018, they schedule new applications first. As such, new applications could be scheduled as soon as 4-6 weeks after the asylum application is received by USCIS. If all new applications are processed and there are additional interview slots, the asylum offices will choose a case from the backlog following a “last in first out” format. Under this policy, the asylum offices are scheduling interviews for applications filed before January 29, 2018, choosing the most recent cases first and moving backwards. Therefore, people who applied for asylum years ago are stuck in an ever-increasing backlog with little recourse. Nevertheless, some backlogged applicants are seemingly randomly chosen for much quicker processing times. Please note, the length of time an applicant may have to wait has no real relationship to the strength or weakness of a claim.
At the interview, applicants generally describe what (if anything) happened in the past and what they fear may happen in the future should they be returned to their country of origin. Two weeks after the interview, the applicant generally returns in person to pick up the decision. In some cases, the decision may not be ready for many weeks, in which case, it will be mailed to the applicant.
Defensive Application
If an applicant is in removal proceedings, they must file an application with the immigration court and not with USCIS. The applicant should make sure that they also get a court-stamped copy of the application as proof that the application was timely filed with the immigration court. This application can be filed by mail, at the court clerk’s office, or during a hearing. If filing by mail, include (1) a self-addressed envelope with postage, (2) an additional copy of the application, and (3) a short note asking the court clerk to return the stamped copy of the form to for your records.
Applications for withholding of removal are made on the same form as asylum applications (form I-589) and are made simultaneously with the asylum application. To apply for withholding, an applicant should check the box on the first page of the form to indicate that they are applying for Withholding of Removal.
Most individuals who apply for asylum and withholding apply for relief under the Convention Against Torture (CAT) at the same time. Like applicants for asylum and withholding of removal, CAT applicants must complete Form I-589. To apply for CAT, an applicant must check off the box on the first page of the I-589 Form indicating that they intend to apply for CAT. Additionally, in the section on the reason for applying for asylum, the applicant should select “Torture Convention.”
The applicant will first be scheduled for a Master Calendar Hearing, at which the applicant will have to state that they wish to apply for asylum, Withholding of Removal, and Convention Against Torture relief. If the applicant has not already done so, they should file their application at this hearing. After this, the Immigration Judge will schedule an Individual Hearing to hear the merits of the asylum claim. The Immigration Judge will also set a “call-up date” by which the applicant must submit all evidence that they want the judge to consider. If the judge does not set a specific date, the date will default to the date indicated in the immigration court practice manual.
At the Individual Hearing, the applicant should present their case for asylum. Opening statements are unusual in immigration court, however an applicant’s counsel should conduct a direct examination. After the applicant presents their case, the government attorney will cross-examine the applicant and any witnesses. The Immigration Judge may ask questions at any time. After the conclusion of testimony, the Immigration Judge will likely render their decision orally. Sometimes, Immigration Judges may take additional time to consider all the submitted evidence and schedule another hearing to render a decision or state that they will send a written decision by mail.
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.
