Asylum Defense Practice
At August, Becerra, and Zheng, we understand that seeking asylum represents one of the most critical moments in your life. When you cannot return to your home country due to a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion, asylum offers crucial protection under U.S. and international law.
The asylum process can be complex and overwhelming, whether you are proactively seeking protection or defending against deportation. Our experienced immigration attorneys provide comprehensive legal representation in both affirmative and defensive asylum proceedings, guiding you through every step of your journey toward safety and security in the United States.
What Is Asylum?
Asylum is a form of protection that allows individuals fleeing persecution to remain in the United States instead of being removed to a country where they fear harm. Under U.S. law, asylum provides not only safety from deportation but also the opportunity to build a new life in America.
To qualify for asylum, you must demonstrate that you have suffered persecution in the past or have a well-founded fear of future persecution based on one of five protected grounds:
• Race
• Religion
• Nationality
• Membership in a particular social group
• Political opinion (or a political opinion someone believes you hold)
Important: Generally, you must file your asylum application within one year of your arrival in the United States. While there are limited exceptions for changed or extraordinary circumstances, these can be difficult to prove. Acting promptly is essential to protecting your rights.
Two Paths to Protection: Affirmative vs. Defensive Asylum
At August, Becerra, and Zheng, we handle both types of asylum proceedings, each designed for different circumstances and stages of the immigration process.
Affirmative Asylum: Proactive Protection
Affirmative asylum applies when you are not currently in removal (deportation) proceedings and are proactively seeking protection from U.S. Citizenship and Immigration Services (USCIS). This is generally a less formal, non-adversarial process.
Who Files for Affirmative Asylum?
Affirmative asylum is typically pursued by individuals who entered the U.S. on a valid visa and later realized they could not safely return home, or those who entered without inspection but are not yet facing immigration court proceedings.
The Affirmative Asylum Process:
• Application: You must file Form I-589, Application for Asylum and for Withholding of Removal, with USCIS. It is crucial that your application includes a comprehensive declaration addressing both the basis for your fear and your qualifications for asylum. Supporting evidence, including affidavits, country condition reports, news articles, and expert testimony, should be carefully compiled.
• Biometric Services: After filing, you will receive a receipt notice and a notice for a biometric services appointment where USCIS will collect your fingerprints and photograph for background checks.
• Asylum Interview: USCIS will schedule a critical interview with an asylum officer who will question you about your application, fear of persecution, and personal history. While you may attend alone, having an experienced attorney from August, Becerra, and Zheng can significantly improve your chances of success. Your attorney will help you prepare, clarify points during the interview, and ensure your story is presented effectively.
• Decision: If the asylum officer grants your application, you will be authorized to live and work in the United States. After one year, you can apply for lawful permanent residence (a green card). If your application is denied and you are not in lawful immigration status, your case will be referred to an immigration judge for defensive asylum proceedings.
Note: If you are not fluent in English, you must bring a qualified interpreter who is at least 18 years old and fluent in both English and your language. Failure to bring a qualified interpreter may result in dismissal of your application or referral to immigration court. USCIS provides sign language interpreters upon request as a disability accommodation.
Defensive Asylum: Protection in Removal Proceedings
Defensive asylum applies when you are already in removal (deportation) proceedings before an Immigration Judge in the Executive Office for Immigration Review (EOIR). In this scenario, you present asylum as a defense against deportation in a formal, adversarial court setting.
When Defensive Asylum Proceedings Occur:
• Referral from USCIS: If an asylum officer determines that you are not eligible for affirmative asylum, your case may be referred to an immigration judge.
• Apprehension at the border: Individuals apprehended by U.S. Customs and Border Protection (CBP) without documentation granting permission to enter or remain in the United States may be placed in removal proceedings and can seek defensive asylum.
• Violation of immigration status: Individuals detained by Immigration and Customs Enforcement (ICE) for alleged violations of their immigration status, such as overstaying a visa, may apply for defensive asylum.
• Credible fear determination: Individuals placed in expedited removal who express fear of persecution or torture may be referred for a credible fear screening, which can lead to defensive asylum proceedings.
The Defensive Asylum Process:
• Credible Fear Screening: Individuals apprehended at the border who express fear of returning to their home country are referred to USCIS for a credible fear interview. An asylum officer will determine whether you have valid reasons to fear harm.
• Notice to Appear: The Department of Homeland Security (DHS) issues a Notice to Appear (NTA), which formally places you in removal proceedings and alleges that you are removable from the United States.
• Filing Application: You must submit Form I-589 with the immigration court. The quality of your application and supporting evidence is critical in this adversarial setting.
• Court Hearings: An immigration judge will hear testimony from you and any witnesses, review all evidence submitted, and listen to arguments from both your attorney and a DHS attorney who argues against your asylum claim. This is a formal legal proceeding where experienced representation is essential.
• Decision: If the judge grants asylum, you receive protection and can remain in the United States. If asylum is denied, the judge will consider whether other forms of relief are available. If no relief is granted, the judge will order your removal. You may have the option to appeal the decision to the Board of Immigration Appeals (BIA).
Establishing Your Fear of Persecution
At August, Becerra, and Zheng, we understand that demonstrating a credible fear of persecution is the cornerstone of any successful asylum application. Our experienced attorneys work closely with you to gather and present the strongest possible evidence to support your case.
Types of Evidence We Help You Compile:
• Detailed personal testimony about past persecution or current threats
• News articles and media reports documenting similar cases in your home country
• Photographs, videos, or other visual documentation of threats or harm
• Human rights reports from organizations like Amnesty International or Human Rights Watch
• Country condition reports from the U.S. State Department
• Academic studies and expert reports relevant to your situation
• Witness affidavits from individuals familiar with your case or similar circumstances
Both U.S. law and international treaties obligate the United States to protect asylum seekers facing credible threats of persecution. Our attorneys ensure that your evidence is thorough, credible, and persuasively presented to asylum officers and immigration judges.
Alternative Forms of Relief
If asylum is not granted, August, Becerra, and Zheng will evaluate whether you qualify for other forms of protection. We explore every available avenue to keep you safe in the United States.
Withholding of Removal
Withholding of removal is similar to asylum but has different eligibility requirements and benefits. You must demonstrate that it is more likely than not (a higher standard than asylum) that you would face persecution if returned to your home country. While withholding of removal does not provide a path to permanent residency or citizenship, it allows you to remain in the United States indefinitely and receive work authorization.
Protection Under the Convention Against Torture (CAT)
CAT protection is available to individuals who can prove that they are more likely than not to be tortured if returned to their home country, either by the government or with its acquiescence. Like withholding of removal, CAT protection allows you to remain in the United States but does not lead to permanent residency.
Cancellation of Removal
Cancellation of removal may be available to certain individuals in removal proceedings who meet specific requirements:
• For Green Card holders: You must demonstrate continuous residence in the U.S. for at least seven years and five years as a lawful permanent resident, and you cannot have any convictions for aggravated felonies.
• For non-permanent residents: You must have maintained continuous physical presence in the United States for 10 years, demonstrate good moral character, and show that a qualifying family member (U.S. citizen or lawful permanent resident spouse, parent, or child) would experience exceptional and extremely unusual hardship if you were deported.
If cancellation of removal is granted, you will receive relief from deportation, and non-permanent residents may be eligible to receive green cards.
Asylum Merits Interviews Following Credible Fear Determinations
When individuals placed in expedited removal proceedings express fear of persecution or torture, they are referred to USCIS for a credible fear screening. If the asylum officer determines that your fear is credible, the process may proceed in one of two ways:
• Asylum Merits Interview: USCIS may retain your case and conduct a second interview to assess your eligibility for asylum, withholding of removal, or CAT protection. Decisions are based on the evidence and testimony presented.
• Referral to Immigration Court: In some cases, USCIS will issue a Notice to Appear, transferring your case to defensive asylum proceedings before an immigration judge.
Why Legal Representation Matters
Both affirmative and defensive asylum applicants have the right to be represented by an attorney. However, the U.S. government does not provide legal representation, and you must secure your own immigration attorney.
At August, Becerra, and Zheng, we provide experienced legal representation that can make the difference between success and failure in your asylum case. Our attorneys:
• Prepare comprehensive applications with detailed declarations and supporting evidence
• Prepare you thoroughly for asylum interviews and court hearings
• Present your case persuasively to asylum officers and immigration judges
• Navigate complex procedural requirements and deadlines
• Explore all available forms of relief when asylum is not granted
• Appeal unfavorable decisions to the Board of Immigration Appeals when appropriate
Important Considerations
• One-Year Filing Deadline: Affirmative asylum applicants must file within one year of arrival in the United States, with limited exceptions for changed or extraordinary circumstances. This deadline is strictly enforced.
• Standard of Proof: Asylum requires a well-founded fear of persecution, while withholding of removal and CAT relief require proof that persecution or torture is more likely than not—a higher standard.
• Processing Delays: The affirmative asylum backlog has grown significantly in recent years, resulting in delays for application processing and interview scheduling. Our attorneys keep you informed and prepared throughout extended waiting periods.
• Work Authorization: Asylum applicants may apply for employment authorization 365 days after filing their asylum application, unless a decision is delayed due to applicant-caused delays.
Contact August, Becerra, and Zheng for Experienced Asylum Representation
The asylum process—whether affirmative or defensive—can determine your safety, your future, and your family's well-being. At August, Becerra, and Zheng, we are committed to providing compassionate, strategic, and effective legal representation to individuals seeking protection in the United States.
If you or a loved one is considering applying for asylum or is already in removal proceedings, contact our experienced immigration attorneys today. We will evaluate your case, explain your options, and fight tirelessly to secure the protection you deserve.
Your safety is our priority. Let August, Becerra, and Zheng guide you through the asylum process with the expertise and dedication you need.