Asylum Rights
Written in plain language for general understanding. This is educational content, not legal advice. Based on federal statutes and official sources.
What is this right?
Asylum is a form of protection that allows people who are fleeing persecution to remain in the United States. To qualify, you must show that you have been persecuted or fear persecution based on one of five protected grounds: race, religion, nationality, political opinion, or membership in a particular social group.
You can apply for asylum affirmatively (by filing with USCIS) or defensively (as a defense against deportation in immigration court). In most cases, you must apply within one year of arriving in the United States (the 1-year filing deadline). If an asylum officer finds a credible fear of persecution during a screening interview, your case will be referred to immigration court for a full hearing.
When does it apply?
This right applies when:
- You are physically present in the United States (regardless of how you entered)
- You have experienced persecution or have a well-founded fear of future persecution in your home country
- The persecution is based on race, religion, nationality, political opinion, or membership in a particular social group
- You are not barred from asylum (for example, by certain criminal convictions or the 1-year filing deadline)
Key concepts:
- Credible fear: If you are caught at or near the border and placed in expedited removal, you can request a credible fear interview with an asylum officer. You must show a "significant possibility" that you could establish eligibility for asylum. This is a lower standard than proving your full asylum case. See 8 C.F.R. § 208.30.
- 1-year filing deadline: You generally must file your asylum application (Form I-589) within one year of your last arrival in the United States. Exceptions exist for "changed circumstances" and "extraordinary circumstances" under INA § 208(a)(2)(D).
- Withholding of removal: A separate protection under INA § 241(b)(3) with a higher standard than asylum ("more likely than not" face persecution) but no 1-year deadline. It does not lead to permanent residence but prevents deportation to the dangerous country.
- Convention Against Torture (CAT): Protection under 8 C.F.R. § 208.16–18 for people who would face torture by or with the consent of their government. No 1-year deadline. Does not require a connection to a protected ground.
What should you do?
Step 1: File Form I-589 (Application for Asylum and for Withholding of Removal) with USCIS within one year of your arrival in the United States. There is no filing fee. Download the form at uscis.gov/i-589.
Step 2: Get an immigration lawyer. Asylum cases are complex, and having a lawyer dramatically increases your chances of success. Contact the National Immigrant Justice Center at (312) 660-1370, the American Immigration Lawyers Association (AILA) at aila.org, or a local legal aid organization.
Step 3: If you are in expedited removal, tell the officer immediately: "I am afraid to return to my country." This will trigger a credible fear interview with an asylum officer. If you pass, you will be referred to immigration court for a full hearing.
Step 4: Gather evidence of persecution. This includes: country condition reports (from the State Department, Human Rights Watch, Amnesty International), personal declarations, witness statements, medical records, police reports, photos, news articles, and any documentation of what happened to you.
Step 5: Prepare for your interview or hearing. For affirmative cases, you will have an interview with a USCIS asylum officer. For defensive cases, you will present your case before an immigration judge. Your lawyer will help you prepare testimony and organize evidence.
Step 6: Apply for an Employment Authorization Document (EAD) using Form I-765. You may apply for work authorization 180 days after filing your asylum application if your case has not been decided. Under 8 C.F.R. § 208.7, your EAD should be issued within 30 days of eligibility if there are no delays caused by you.
What should you NOT do?
Don't wait to apply. The 1-year filing deadline is strict. Start the process as soon as possible after arriving in the United States. Even if you think you might qualify for an exception, file as early as you can.
Don't return to your home country. Traveling back to the country you are fleeing can be used as evidence that you do not truly fear persecution, which can destroy your asylum case.
Don't file a frivolous application. Knowingly filing a false asylum claim results in a permanent bar from any future immigration benefit under INA § 208(d)(6). Be truthful in every detail.
Don't miss any deadlines or hearings. Asylum cases involve strict deadlines for filing, submitting evidence, and appearing at interviews or hearings. Missing any of these can result in denial or an in absentia removal order.
Don't leave the U.S. without advance parole. If you have a pending asylum case, leaving the country without advance parole (Form I-131) is considered an abandonment of your application. This applies even if you are traveling to a third country, not your home country.
How New Jersey differs from federal law
New Jersey provides a moderately supportive environment for asylum seekers with both state and nonprofit resources:
- NJ Immigrant Trust Directive (AG Directive 2018-6): Protects asylum seekers by limiting local law enforcement cooperation with ICE, allowing them to interact with police and access services without fear of immigration enforcement.
- NJ DREAM Act (2018): Asylum seekers' children who meet in-state tuition residency requirements can access state financial aid, including NJ TAG and EOF awards.
- NJ FamilyCare/Medicaid: Asylum seekers with pending applications may qualify for Emergency Medicaid for life-threatening conditions. New Jersey has expanded healthcare access for certain immigrant categories.
- Free legal services: Organizations like the American Friends Service Committee, Legal Services of NJ, and Catholic Charities of the Archdiocese of Newark provide free asylum representation.
- NJ Division on Civil Rights: Asylum seekers are protected from discrimination based on national origin under the NJ Law Against Discrimination (N.J.S.A. 10:5-1 et seq.) while living in New Jersey.
Additional Steps in New Jersey
Contact Legal Services of NJ at 1-888-576-5529 or lsnj.org for free asylum help. The NJ Office of New Americans provides referrals to immigration services — visit nj.gov/state/dos-office-new-americans.shtml. For detainees at the Elizabeth facility, contact the ACLU of NJ.
Relevant Law: NJ AG Directive 2018-6 (Immigrant Trust Directive), S699 (NJ DREAM Act, 2018), N.J.S.A. 10:5-1 et seq. (Law Against Discrimination), federal asylum law (INA § 208) applies
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