Affirmative Asylum Program

A Day in the Life: Caroline Kornfield Roberts from Emerson Collective

What is EBSC’s Affirmative Asylum Program?

EBSC began its Affirmative Asylum Program in 1992. Since that time, EBSC has filed more than 2,500 asylum cases. Over 97% of the asylum cases have been granted.

If you are seeking legal assistance please come to EBSC’s office immediately to inquire about our programs. Affirmative Asylum Program intakes are drop-in only, however, individuals who are applying for asylum based on their LGBT status must make an appointment. When coming for your intake interview please bring any passports in your possession. All information you provide to EBSC is confidential and attorney-client privileged. No person, aside from you and your intake counselor, will ever hear any details about your case without your express permission.

All clients are required to obtain FBI RAP sheets, and all criminal records. This costs $40; however, EBSC will loan a client the fee to do so if necessary. In addition, certain clients will have to pay for a psychological evaluation and/or interpretation for the asylum interview. These costs may range from $200 to $600 for psychological evaluations and average $100 for professional interpretation.

Note: The information provided below is not meant to be legal advice. Before seeking any immigration benefit and at all times while in Removal Proceedings contact an attorney or an organization licensed by the Board of Immigration Appeals. 

Who Does the EBSC Affirmative Asylum Program Help?

EBSC Affirmative Asylum Program is open to immigrants who are considered refugees under the United States Immigration Laws and cannot afford a private attorney. A refugee is a person who fears returning to their home country and is unwilling or unable to seek the protection of their home government because the immigrant has suffered persecution in the past or has a well founded fear of future persecution on account of race, religion, gender, political opinion, or a membership in a particular social group. INA § 101(a)(42)(A). Any immigrant within the United States may apply for asylum status within one year of arriving regardless of whether the immigrant entered this country without documents or stayed beyond the length of time allowed in his or her visa.

A note on the classification of “membership in a particular social group.” This ground for asylum is the least defined of all of the previous grounds. Each member of a particular social group must share a common characteristic with the rest of the group which the member cannot or reasonably should not change. Further, these groups must be readily identifiable by the public at large in the immigrant’s country of origin. Examples of cases which fall under this ground include, but are not limited to: gay men from Mexico, domestic violence victims, HIV/AIDS patients, and indigenous Guatemalans.

Are There Exceptions to This One Year Of Arrival Time Limit?

Yes. All potential asylees must apply for asylum benefits within one year of arriving in the United States unless the potential asylee can show that an “extraordinary” circumstance prevented the application or that the asylee experienced a change in circumstances which materially affects their eligibility. INA § 208(a)(2)(D).

Currently, there is very little guidance as to the definition of extraordinary and changes in circumstances. What we do know is that extraordinary circumstances include a severe physical or mental disability, a death of an immediate relative, ineffective assistance of counsel if the applicant files a formal complaint, and maintaining lawful status; however, we do not know the limits of these definitions or whether circumstances beyond this list count as extraordinary circumstances.

Change of circumstances are even more loosely defined. They include a change in the applicant’s activities or condition, a change in the condition of the applicant’s country of citizenship, or a change in United States Immigration law which materially affects the applicant’s eligibility to apply for asylum.

Whenever a client has an intake interview with EBSC we begin to search for an exemption from the one year bar immediately.

Are There Other Time Limits I Should Be Aware Of?

Yes. An applicant must file within a “reasonable time” after a change in circumstances or after the end of their extraordinary circumstances. A reasonable time is generally six months from the date of the change or the date of first legal consult if an applicant is using extraordinary circumstances as an excuse from the one year bar.

Does USCIS Charge a fee to apply for Asylum?

Currently, there is not a fee to apply for asylum.

What is the process to apply for Asylum?

The asylum process is complex and lasts several months. It begins when an immigrant completes an intake interview at EBSC. During this intake, EBSC asks minimal questions to determine asylum eligibility: when the immigrant arrived in the United States, if the if the immigrant has been arrested in the United States, if the immigrant has been removed from the United States, and why the immigrant is afraid to return to his or her country of origin.

Once the case is accepted by EBSC, the immigrant is assigned to a law student who will work with the immigrant through the remainder of the process. This includes filing the requisite forms required by the Department of Homeland Security (DHS), drafting a declaration of the immigrant’s life experiences, and preparing the immigrant for an interview. Often, an immigrant will meet with a law student at EBSC three or four times before the case is ready to be heard by DHS.

Current immigration law requires that all immigrants who apply for asylum file any records which are related to the asylum application which are reasonably available. Also, an immigrant who applies for asylum must submit current relevant documents which show the situation in the immigrant’s country of origin. EBSC will gather and submit the required country conditions document for all of our clients; however, due to a lack of resources, our clients must obtain any records on their own.

During this process, DHS will set a formal asylum interview with an asylum officer. Typically, this interview is set for one month after the asylum forms have been filed. Two or three days before the formal interview, the law student will meet with the client to prepare for the formal interview. All of our law students work under the supervision of a very experienced staff and very experienced attorneys and will pinpoint specific issues which will “make or break” the immigrant’s asylum application during the interview. Finally, the law student will represent the immigrant during the asylum interview.

For every country aside from Mexico, DHS will render a decision on the asylum application two weeks after the formal asylum interview. For immigrants from Mexico, a decision will be rendered at some point during the calendar year. An immigrant will be given one of three decisions: approval, referral, or a notice of intent to deny. If approved, in most cases, the immigrant will have the right to remain in the United States permanently and will adjust to a permanent resident one year after the approval. Once a permanent resident, the immigrant will later be eligible for naturalization as a United States Citizen.

A referral moves the case from DHS to a formal Removal Proceeding in the Immigration Court. In court, the immigrant will be able to renew his application for asylum before an Immigration Judge. All immigrants who are in Removal Proceedings should be represented by a lawyer at all times. Unfortunately, EBSC cannot represent clients who are in Immigration Court proceedings at this time. We do, however, refer immigrants to low fee lawyers who may take the immigrant’s case.

A notice of intent to deny is given to clients who currently have immigration status and whose asylum case is not granted by DHS. When this notice is issued, the immigrant has 30 days to rebut the reasoning for the denial. EBSC will file the rebuttal for all of our clients. Many EBSC clients who are given a notice of intent to deny are later granted asylum after EBSC files its rebuttal.

What Happens if I am referred to Immigration Court?

EBSC partners with numerous low cost and pro bono attorneys to ensure that our clients are represented at all stages in their asylum proceedings. We help most of our clients find representation through the Lawyers Committee for Civil Rights or through Nancy Powell. Rarely, our staff attorney, Kaveena Singh, will continue a case through the immigration court process; however, these cases often include complex issues that EBSC is attempting to have an appellate court clarify.

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