<  Asylum

Case Outcome

Affirmative asylum cases may conclude in three ways. First, the case may be approved. If so, the process concludes. Second, an applicant may receive a request for additional evidence (an RFE) or a notice of a second interview. While a second interview is somewhat uncommon, and may reflect an issue in the case, it can often also be innocuous. (For example, there are certain questions an asylum officer must ask before granting a case. If the officer forgot even one essential question, the applicant must return in person to answer it.) Third, if the asylum office does not grant a case, and the applicant is out-of-status at the time the decision is made, the asylum office refers the individual to removal proceedings. Finally, if the asylum office does not grant the case, and the individual has valid visa status at the time, the case is denied and the individual retains their visa status until it expires.

As a matter of strategy, it may seem tempting to file for asylum while someone is in valid visa status so that they avoid removal proceedings. However, filing for asylum may make it difficult to obtain future non-immigrant visas, and so an individual may have a hard time remaining in the United States lawfully. At the same time, while there is always a risk of deportation in removal proceedings, there is also an opportunity for the applicant to have their claim reviewed by an immigration judge de novo. 

If an immigration judge grants an asylum application, the government’s trial attorney has the right to appeal the decision within 30 days. If they waive the appeal, or file no appeal within the deadline, the case is complete. A more detailed explanation of a denial in immigration court follows the next section.

Approval

1. Asylum

A person who is granted asylum (often called an “asylee”) has the immediate legal right to live and work in the United States. Generally, most asylees choose to apply for an employment authorization document and other forms of state identity documents to prove that they have the legal authorization to live in the United States.  Please note however, that an asylee has immediate permission to work even without an employment authorization document. As such, an asylee may obtain an unrestricted social security card with the original I-94 arrival/departure record upon which USCIS will place an “asylum granted” stamp, or the original court order granting asylum. Be careful with these originals, they are difficult to replace.

While asylum is a relatively secure immigration status to have in the United States, there are certain limitations and responsibilities which come with the status.

Asylees in the United States may qualify for certain government benefits. Because some of these benefits require a person to apply shortly after being granted asylum, it is important for an asylee to investigate such options as soon as possible.

a. Adjustment of Status

Asylees are permitted under United States immigration law to apply for lawful permanent residence (a green card) one year after a final grant of asylum.

To apply for lawful permanent residence as an asylee, a person must generally submit at least the following documents:

  • Form I-485
  • Filing Fee
  • 2 passport style photographs
  • Form I-693 Medical Examination form and vaccination supplement [to be completed near the date of the interview]
  • Evidence of asylee status (copy of I-94 and letter granting asylum or copy of the decision by an Immigration Judge)
  • Birth certificate, if available
  • Proof that the asylee has been physically present in the U.S. for one year (e.g., copy of a lease, bills, pay stubs, or receipt of government benefits)
  • Proof of legal change of name (if there has been a legal name change since the grant of asylum).
  • Proof that the asylee is a person of good moral character (e.g., proof of gainful employment, tax returns, any classes taken, volunteer work, community service, a few letters of support from friends or acquaintances)

Some asylees who are applying for a green card will have to submit additional paperwork along with their applications. For example, if an asylee has been convicted of certain crimes, or was forced to make misrepresentations in an initial visa application in order to escape persecution, that person may need to apply for a “waiver of inadmissibility” to qualify for lawful permanent resident status. Certain crimes and misrepresentations can legally bar a person from obtaining lawful permanent resident status, and in some instances can lead to revocation of a person’s asylum status. It is important to consult with an attorney before applying for a green card.

Applicants for lawful permanent residence should check the USCIS website for the most up-to-date information about where to file their applications and about the filing fees for the application.  Applicants should keep a copy of everything they send to USCIS. They should send the application materials via certified mail and request a return receipt, or use a courier service with a tracking number that can confirm receipt by USCIS.

Unlike other applicants for lawful permanent residence, asylees do not have to prove that they are not “likely to become a public charge.” This means that having received welfare or other government benefits does not itself harm an asylee’s chances of obtaining a green card. Since asylee adjustment applicants do not have to prove that they are able to support themselves, they can apply for a waiver of the fee for the I-485. The USCIS website provides more information on fee waiver requests.

Like all non-citizens, asylees who change their address are required to notify the government within 10 days of that change of address, either online or by mailing Form AR-11.

b. Naturalization

Generally, a legal permanent resident can apply to naturalize, or become a U.S. citizen, five years after obtaining a green card. When asylees get their green card it is backdated one year, meaning that they can apply to naturalize four years after obtaining residence. Once a foreign national becomes a U.S. citizen, as long as there was no fraud in the naturalization application, he or she cannot be deported. If a permanent resident is married to a U.S. citizen, they may apply for naturalization after having a green card for only 3 years.

c. Asylee Travel

Asylees who wish to travel outside the United States should consult with an attorney before doing so. Any time an asylee or other non-citizen travels abroad, the United States government can review that person’s entire immigration record and determine whether or not to let that person reenter the United States. Asylees who wish to travel abroad should keep in mind the following:

  • Do not return to the country from which asylum was won. Returning carries a risk that the United States government may revoke a persons’ asylum grant, alleging that the person either no longer fears persecution in their country of origin, or lied about their fears of persecution to obtain asylum. Even after an asylee receives lawful permanent residence in the United States, returning to a country from which a person was granted asylum can potentially endanger that person’s immigration status in the United States. While there are compelling reasons a person may return to their country of origin, and the U.S. government makes many exceptions and decides not to revoke a person’s asylum status for compelling reasons, it is a high risk to take.
  • Do not travel with the passport issued by the country from which asylum was won. Doing so can lead the United States to conclude that an asylee has sought and received protection from their home country and can lead to revocation of a person’s asylum status. Asylees who travel outside the United States should consult an attorney about applying for a Refugee Travel Document, which does not carry the same risk as using the asylee’s foreign passport.

Practically speaking, many asylees have traveled abroad without problems. The safest course of action, however, is to consult with an attorney before traveling abroad. Before someone travels with a refugee travel document, we recommend that they make sure the country they wish to visit, and any transit countries, accept the U.S. refugee travel document. The individual should also make sure that they are able to enter the country and research any visa requirements. Consulting with that nation’s embassy is probably the best way to do so.

d. Asylee Employment Authorization

Asylees who have been granted final approval of their asylum applications (and not merely a “Recommended Approval” letter from the asylum office), immediately have the right to live and work in the United States without needing an Employment Authorization Document. However, since asylees do not receive any photo identification proof of their asylee status, some asylees choose to apply for a USCIS issued Employment Authorization Document to have a government-issued ID. Even so, a state-issued ID will probably cost less and last longer.

Asylees are also eligible for “unrestricted” Social Security cards, which allow a person to work in the United States without also having an Employment Authorization Document. Some asylum applicants who have not yet received final approval are only able to obtain “restricted” Social Security cards that indicate that they are “valid for work only with authorization from the Department of Homeland Security.” A person with a “restricted” Social Security card who subsequently wins asylum may apply for an “unrestricted” card. This unrestricted card will no longer state that the person requires authorization from the Department of Homeland Security.

Many employers are unfamiliar with asylum status, and may refuse to employ a person unless that person can produce either a “green card” or an Employment Authorization Document. This is improper, and asylees encountering this difficulty may show their employers the Department of Justice Policy notice explaining that asylees are legally authorized to work without an EAD.

e. Benefits Available to Asylees

Asylees are permitted to receive many government benefits, which other immigrants are not permitted to receive. These include: welfare (Temporary Aid to Needy Families and Safety Net); Supplemental Security Income (SSI) if disabled; Medicaid and Food Stamps, for seven years after the date the application is granted.

For more information about what government benefits different categories of immigrants are eligible to receive, please see the Empire Justice Center website.

Asylees can call 1-800-354-0365 for more information on local refugee service providers or see State Refugee Coordinators.

2. Withholding

A person who is granted withholding of removal is protected from being deported to the country where they fear persecution. However, withholding of removal is inferior to asylum in several important ways.

A person granted withholding of removal has no pathway to a green card or to U.S. citizenship. Because an order of removal was issued, and then withheld, a person would have to reopen their removal proceedings in order to pursue other immigration options. Warning: it is important to consult with an immigration attorney before reopening a withholding case. While it may well be worth the risk to do so, reopening the case may also jeopardize the initial grant of withholding of removal. This could then result in the threat of actual deportation.  

A person granted withholding of removal is required to apply yearly for an employment authorization document in order to maintain the legal right to work in the United States. As of today, no government fees are charged to apply for an employment authorization document on the basis of having a grant of withholding of removal.

People granted withholding are eligible to receive some, but not all, of the same government benefits as asylees.

A person granted withholding of removal cannot travel outside of the United States. If they do, they are considered to have self-deported and the order of removal the immigration judge issued will go into effect. This will make it very unlikely for that person to re-enter the United States.

The government retains the legal right to deport people granted withholding of removal to a country other than the one from which they were granted withholding of removal. Practically speaking, this type of deportation to a third country is rare. However, ICE frequently issues “Orders of Supervision” that require people granted withholding “to check-in” regularly with an agent either in person or by phone, and to request prior permission before leaving the state in which they live. These required check-ins can sometimes last for years, or for forever.

It should be noted that if an applicant is granted withholding of removal, the government can appeal the decision within 30 days of the Immigration Judge’s order.

For people who are granted withholding of removal while detained in an immigration detention facility, ICE will sometimes choose to continue to detain that person even after they have won their case. In most cases, this type of continued detention is improper and contrary to longstanding internal ICE policy that favors release for these individuals. See Immigrant Justice’s Field Guidance Reminder (PDF, external site). LGBTQ people or people living with HIV who continue to be detained even after being granted withholding of removal should contact Immigration Equality.

3. CAT

There are two types of protections under CAT: withholding of removal and deferral of removal. CAT withholding of removal protection prevents the deportation to the specific country where the applicant would face torture. However, this status may be terminated if the government reopens the case and establishes that the applicant is no longer likely to be tortured in the country. Also, CAT recipients may be removed to a third country where they would not be tortured if they have a legal right to remain there.

A person who has been granted CAT withholding of removal may apply for work authorization. If granted, the Employment Authorization Documents are valid for one year and have to be renewed every year. Unlike Withholding of Removal, applicants who have been granted CAT withholding of removal have to pay the relevant government fees with their applications for employment authorization. 

CAT “deferral of removal” prohibits returning applicants to a country where they would likely face torture. Deferral of removal is granted to applicants who pose a security risk in the United States, usually due to criminal convictions, terrorist activity, or participation in the persecution of others. Those granted deferral of removal may be held in detention and are not entitled to employment authorization, but they may be released or issued employment authorization by the local Immigration and Customs Enforcement (ICE) district director. 

It should be noted that if an applicant is granted Convention Against Torture relief, the government can appeal the decision within 30 days of the Immigration Judge’s order.

Denial

If an applicant applied affirmatively and is in valid immigration status (tourist, student, etc.) at the time of the asylum office’s decision, they will be issued a document called a “Notice of Intent to Deny” or a “NOID.” The applicant is permitted to submit further evidence to the asylum office about why they should win the case, but does not have a legal right to ask a judge or an appeals court to review that decision.  Most responses to a NOID are not successful in changing the asylum office’s decision. In most cases, a person who is issued a NOID is required to leave the country when their authorized stay ends.

If the applicant applied affirmatively and is not in valid status (visa overstay, entered without inspection, etc.), then they will be placed in removal proceedings at an immigration court. In removal proceedings, the applicant will have a second chance to explain their case to an immigration judge, while an attorney for the government argues that the applicant should be deported. The judge hears testimony from the applicant and their witnesses, reviews evidence, and decides whether or not the person will be permitted to remain in this country.

Unlike the asylum office, an immigration judge has the legal authority to grant other immigration benefits in addition to asylum, such as withholding of removal, Convention Against Torture relief, and in some instances, lawful permanent residence (a green card) for those who qualify.

If the applicant applied and lost in immigration court, the applicant will be given an order of removal. The applicant can appeal the Immigration Judge’s decision to the Board of Immigration Appeals (BIA) within 30 days. If the appeal with the BIA is timely filed, while the appeal is pending, the applicant’s order of removal is automatically stayed, i.e., the applicant should not be removed from the United States till the BIA decides on the appeal.

There is always a risk of removal (deportation) when a person files for asylum. Because of the extremely high number of cases that immigration courts hear, it is somewhat common for a person’s case to take years to come to a final resolution.


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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