Applying for Asylum in Virginia

The process of applying for asylum in Virginia can be difficult to understand, especially if a person is coming from a non-English speaking country. For this reason, it is crucial to retain an experienced Virginia asylum lawyer to be on your side and to help explain the process to you as you go through it. By having an attorney to guide you, the process will be much less intimidating and frustrating, and you will have a much better understanding of where you stand in the application process.

There are two main types of applications. An affirmative application is when an individual is not in removal proceedings and can apply for asylum directly with USCIS. A defensive application, on the other hand, is when a person is in removal proceedings and must apply directly with the immigration court instead of going through USCIS first.

Affirmative Applications

The first way to apply for asylum is if you are present in the United States, but are not yet in removal proceedings. In other words, you don’t have an open case in front of the immigration court. These are called affirmative applications. In order to apply affirmatively, you submit an asylum application, which is done on USCIS Form 589, as well as identity and immigration documents, a statement outlining your fear of return, and significant documentation to support your claim to your local USCIS office.

USCIS will then review your submission and schedule you for an interview. The interview is not a confrontational setting, meaning there is no one there to oppose your claim. It is just you, the USCIS officer, possibly a translator, and your attorney if you have one. There’s no prosecutor or judge; it is more of an informal setting. The interviews usually last from two to three hours, during which time you tell your story and the officer determines whether he or she believes that you are credible, and, if so, whether your claim constitutes a well-founded fear of persecution or past persecution under US asylum law. If the USCIS officer decides to grant your case at that point, you will be in asylum status as soon as it is approved, and that status will last indefinitely. After one year, though, you will be able to apply for your green card.

Defensive Applications

The other way you can apply for asylum is if you are already in removal proceedings. This is called a defensive application, and it happens primarily when people enter the United States illegally at the border and are apprehended by ICE officials. At that point, individuals can initiate asylum applications if they are determined to have a credible fear of persecution by the asylum officer who interviews them while in detention. If you are in removal proceedings, you do not have the option to apply directly with USCIS. Instead, you have to apply in front of the immigration judge. In these cases, you will attend an initial hearing called a master calendar hearing with a number of other people. You will submit your asylum paperwork, including the USCIS form, your declaration, and preliminary supporting documentation. Then, the judge will schedule you for an individual hearing, which means a “trial” to adjudicate your case. Individual hearings involve only you, your attorney, the prosecutor, and any witnesses.

In cases where you apply affirmatively to begin with, but USCIS denies your claim, USCIS will send the file to the immigration court and they will initiate removal proceedings. You will then have another chance to present your case—this time, in front of an immigration judge.

Including a Child on an Application

In order to include your child on an asylum application, the child needs to be under 21 years of age. Generally, if children are with the applying parent in the United States, then they can all file together. However, if the children are still in their home country and the parent is here alone, then the parent needs to have his or her own asylum application approved and can then petition for the children to join him or her.

Applying for Work Permission

When you submit your asylum application affirmatively with USCIS, you are eligible to apply for a work authorization 150 days after that application is submitted. You are allowed to work while you’re waiting for your interview because the wait time for asylum interviews can sometimes be years.

Alternatively, if you’re in removal proceedings, you’ll submit your application to the immigration court in person and you’ll get a date stamp on it in court. Then, 150 days after that date stamp, you’re eligible to apply for your work authorization while you’re awaiting your individual hearing. The ability to work is especially important when someone is in removal proceedings because right now in Virginia, the wait time for an individual hearing is more than five years. It’s very important for those people to be able to work while they’re awaiting their final hearings. You can have your asylum application “date stamped” by the court to start the clock as soon as removal proceedings are initiated – you don’t have to wait for your hearing to be scheduled.

Impact of Past Criminal Charges

Many crimes will not bar you from applying for asylum. However, if you have been convicted of a serious crime, which is a legal classification of crimes, then you’ll be ineligible for asylum or withholding of removal under the Convention Against Torture. What constitutes a serious crime is defined by both statute and case law, but the courts also look at things like the nature of your conviction, the circumstances and the underlying facts, as well as the type and length of sentence that was imposed. Anything that constitutes an aggravated felony under immigration law will automatically be considered a particularly serious crime and you’ll be ineligible to apply for asylum.

Traveling After Obtaining Aylum

One thing that people need to be careful about regarding travel is returning to their home country. It’s very important to speak to an attorney if you have any intention of returning to your home country, and that’s true even if your asylum application has already been granted. If you return to your home country while applying for asylum, or while in asylee status, it can indicate to the US government that it was actually safe for you to return. That’s going to harm your ability to prove your well-founded fear of future persecution, if the case has not been granted, and can lead to a termination of your asylee status.