Criminal Defense Lawyers

How to Navigate the Asylum Process in New York

Applying for asylum in New York State is a very complex – and high-stakes process. It’s a legal process which requires meticulous preparation and perseverance. This guide will walk you through the process of getting asylum in New York, and it will arm you with the knowledge you need to get through this legal process.

Understanding Asylum

Asylum is a form of protection which is given to foreign nationals that are already present in the United States, or who arrive at a port of entry to the USA. To be eligible for Asylum, you have to meet the definition of a “refugee” – that is, someone unable, or unwilling, to return to their original country due to persecution, or a fear of future persecution based on:

• Race
• Religion
• Nationality
• Political opinion
• Membership in a particular social group

Asylum is discretionary – it means you can be denied Asylum in New York even if you meet the refugee definition. However, if asylum is denied, you can still qualify for “withholding of removal” – which is essentially a way to avoid returning to a place where your life or freedom is in jeopardy.

There Are Many Paths to Asylum

There are three ways to apply for asylum in the U.S.:

Affirmative Asylum

• You are not in any removal proceedings
• You File Form I-589 with USCIS

Defensive Asylum

• You are in removal proceedings
• You are requesting asylum as a defense against deportation infront an immigration judge

Asylum Processing Rule

• This is done if you show fear of persecution after entering from the border
• Credible fear interview is done
• Asylum Merits Interview with asylum officer (21-45 days after credible fear determination)
• If denied, case referred to immigration judge

Regardless of which process you go through, you have to be physically present in the U.S. to apply for Asylum.

Building Your Asylum Case

The burden of proof rests on you – you have to be able to provide evidence of past persecution in your original country, or show a fear of harm if you return to your country. The testimony you give is critical, but in addition – you will need supporting documentation to support your claim:

• Police/medical reports
• Witness statements
• News articles
• Documentation of human rights violations
• Proof of political activities/affiliations

Gather every piece of evidence available. If documents are not in English, ensure certified translations are available.

The One-Year Filing Deadline

Generally, you have to file file for affirmative, or defensive asylum, within one year arriving in New York.

Exceptions can apply if:

• There are changed circumstances materially affecting your eligibility
• There were extraordinary circumstances relating to your delay
• You entered as an unaccompanied minor

Failure to file within the one-year window can result in a denial, or referral, to an immigration judge for defensive asylum processing – which increases the risk of removal.

Affirmative Asylum: The Process

If you are not in removal proceedings, you can proactively file for affirmative asylum:

1. File Form I-589 – Application for Asylum and Withholding of Removal
2. Receive a Notice for Fingerprint Appointment
3. Attend Biometrics Appointment
4. Receive Interview Notice
5. Prepare for Interview – Gather evidence, witnesses, attorney representation
6. Attend Interview at Asylum Office
7. Receive Decision by Mail

This process takes months – even years. Legally present or not, you cannot be deported while your asylum case is pending. This is your defense.

Defensive Asylum: Courtroom Battles

If you are already in immigration removal proceedings with an immigration judge, you can request defensive asylum as a means to remain in the U.S.

This process includes:

1. File Form I-589 with Immigration Court
2. Submit Biometrics
3. Attorney Preparation – Gather evidence, witnesses, legal arguments
4. Individual Merits Hearing before Immigration Judge
5. Receive Oral Decision or Written Decision by Mail

Unlike affirmative asylum, the defensive process happens on very quick – often it can happen in weeks. Having an experienced immigration attorney is very important to navigate this complicated process.

Employment Authorization

You cannot apply for a work permit while at the same time applying for asylum. If no decision has been made on your asylum case after 150 days, you can file Form I-765 to request employment authorization. Once you are granted asylum, you can almost immediately work, get a Social Security card, get certain public benefits, petition for family reunification, and eventually apply for permanent residency.

Overcoming Obstacles

Asylum cases are rarely straightforward. Be prepared for:

Delays and Backlogs – It’s not uncommon to wait over two years for an asylum decision.

Requests for Additional Evidence – Expect requests for more documentation to prove your claim.

Referrals to Immigration Court – Affirmative asylum cases can be referred to defensive proceedings if the asylum officer has doubts.

Denials and Appeals – If asylum is denied, you have options to appeal and fight removal.

The key? Patience, preparation, and an unwavering commitment to your case.

Your Rights as an Asylum Seeker

As you navigate the asylum process, know your rights:

• You have a right to legal representation (at no expense to the government)
• You have the right to freedom from discrimination based on race, religion, nationality, etc.
• You have protection from unlawful deportation while your case is pending
• You have the ability to request a competent interpreter
• Confidentiality regarding your immigration status

Understand and assert these rights – they exist to safeguard your due process!

Hypothetical Scenarios

Throughout this process, you will face many hypothetical scenarios that test your soul:

It could be that your initial asylum application is denied. In this situation, it’s importantto  explore all available legal options, such as appealing the decision or requesting a review from an immigration judge.

Perhaps the evidence you’ve provided is not sufficient. If this occurs, your immigration attorney can help you gather additional documentation or witness testimonies to bolster your claim, the goal is to make sure that your case is presented in the most compelling manner possible.

There’s a chance that your case could be delayed due to backlogs or administrative issues.

While this is frustrating, it’s crucial to have patience and continue cooperating with the authorities; rushing this process can potentially jeopardize your chances of success.It’s possible that you may face discrimination or mistreatment during the asylum process. If this happens, it’s vital to document any discriminatory incidents and report them to your lawyer immediately, as such actions violate your rights as an asylum seeker.

Asylum in New York: FAQs

Who is eligible for asylum?

To be eligible for asylum, you have to meet the international definition of a “refugee” – meaning someone who is unable or unwilling to return to their home country due to past persecution or a well-founded fear of future persecution based on race, religion, nationality, political opinion, or membership in a particular social group.

What are the different ways to apply for asylum in the U.S.?

The three primary paths are:

1. Affirmative Asylum – File Form I-589 with USCIS if you are not in removal proceedings.
2. Defensive Asylum – Request asylum before an immigration judge as a defense against removal proceedings.
3. Asylum Processing Rule – For recent arrivals from the border expressing fear of persecution. Involves a credible fear interview and Asylum Merits Interview.

Is there a deadline to apply for asylum?

Generally, you should file for affirmative or defensive asylum within one year of your last arrival in the United States. Some exceptions to this rule can apply for changed or extraordinary circumstances.

Can I work while my asylum case is pending?

You cannot apply for a work permit at the same time as your asylum application. However, if no decision has been made after 150 days, you can file Form I-765 to request employment authorization.

What evidence do I need for my asylum case?

Gather any documentation that supports your claim of past persecution or fear of future harm, such as:

• Police/medical reports
• Witness statements
• News articles
• Proof of human rights violations
• Evidence of political activities/affiliations

Your personal testimony is also critical evidence.

Can I bring my family if granted asylum?

Yes, you may petition to bring your spouse and unmarried children under 21 to the U.S. by filing Form I-730 within two years of being granted asylum.

What are my rights as an asylum seeker?

You have the right to legal representation, protection from discrimination, freedom from unlawful deportation while your case is pending, access to competent interpreters, and confidentiality regarding your immigration status.

Where can I find support services in New York?

New York offers legal aid from advocacy groups and law clinics, social services from resettlement agencies, and community support through cultural organizations, faith-based initiatives, and mutual aid networks.

At a Glance: The Asylum Process in New York