Last time, we discussed how standards of evidence have become more challenging under the Trump Administration. Here, we’ll talk about some other ways the government is trying to prevent applicants from receiving asylum in the United States.
One trick that seems increasingly common, especially in Immigration Court, is related to a case called Matter of M-A-F-, 26 I&N Dec. 651 (BIA 2015). This is not a new case, but its rule had rarely been enforced. Essentially, it states that if you filed for asylum for one reason, but then something changes and you have a new basis for asylum, you need to file a new claim for asylum. If you fail to do that soon after the change, your claim could be barred as filed too late (per the one-year asylum bar). DHS (the prosecutor in Immigration Court) recently tried to block one of my clients based on Matter of M-A-F-. My client feared persecution from the Ethiopian government and filed for asylum in 2015. DHS argued that the government changed in 2018 when a new prime minister came to power, and that we failed to amend the asylum application after the change. We countered that it was the same government persecuting my client, but with different leadership. My client ultimately prevailed, but this is not an argument DHS had been making previously, and now we are seeing it more often. So if you have a new basis for asylum, it is best to inform the Asylum Office or the Immigration Court as soon as possible.
Speaking of the one-year asylum bar, since the Trump Administration is looking for reasons to deny, it is doubly important to provide evidence and show that you filed timely for asylum or that you meet an exception to the one-year bar. I wrote more about this here. I’d also note that if you filed late, but if something changes giving you a new basis for asylum, you can file a new claim and possibly use that as a reason to overcome the one year bar.
Another way the Trump Administration is trying to block asylum seekers is the Circumvention of Lawful Pathways rule. This started under President Biden and is a way to deny asylum to people who arrived at the U.S.-Mexico border on or after May 11, 2023 and who failed to make an appointment to present their asylum claim using the CBP-One app. Such people may still qualify for Withholding of Removal or protection under the Torture Convention, but these are not as secure as asylum, and they do not protect you from deportation to a third country. If you arrived at the Southern border and failed to use the CBP-One app, you need to show that you meet an exception to the rule in order to qualify for asylum. I wrote more about that here.
Also, of course, there is the $100 annual fee for asylum cases. If you have an asylum application pending in Immigration Court, it is now possible to pay the annual fee here. The court will supposedly send a notice informing you that you have to pay, but you don’t need to wait for the notice to make a payment. If you have a case at the Asylum Office, you can pay here. However, you can only pay the fee at the Asylum Office after USCIS sends you a notice (there is no harm in trying to pay before you get the notice, but this probably won’t work until the notice arrives). Failure to pay could result in an asylum case being denied.
For people in Immigration Court who might be denied asylum due to the one-year bar, failure to use CBP-One, a criminal issue or for some other reason, they might still qualify for Withholding of Removal or protection under the Torture Convention. However, these forms of relief do not include dependents. For this reason, each dependent who fears persecution should file their own asylum application, form I-589 and pay the $100 asylum fee. This will help avoid a situation where the principal gets Withholding of Removal, but the dependent family members are ordered deported.
Another way the current Administration is harming asylum seekers is by scheduling their cases with little advance notice. We can expect to see this more frequently in Immigration Court because the government is appointing hundreds of military judges to adjudicate cases. It is also happening at the Asylum Office, which has never really provided adequate advance notice before an interview. Because cases can be scheduled with little warning, it is important that you gather your evidence and have everything ready, just in case you are required to present your application quickly.
Finally, some asylum seekers–particularly those in court who entered the U.S. at the Southern border–are being detained by ICE and placed into expedited removal proceedings. If that happens, it is more difficult to present an asylum claim and defend yourself from deportation. If you have an Immigration Court case and think you might be vulnerable to expedited removal, try to prepare your case in advance, and talk to a lawyer about how to best protect yourself. I wrote more about this issue here.
Unfortunately, it is not entirely possible to “Trump proof” an asylum application. When the weight of the federal government is turned towards denying asylum cases, it inevitably becomes more difficult to receive protection. However, you can take steps to maximize the possibility of success, and despite the hostility of the current Administration, it is still possible to win an asylum case.
Hi Jason. I’m filling in green card application after my asylum was approved. For questions about previous conviction/arrests/prison time/ judge decision, do I need to explain them all in detail if they were part of my I-589 case and were discussed in detail during the interview and in my statement? Would it be okay if I reference them to my I-589 case for details?
As long as you answer the questions on the I-485 properly (about arrests for example) and provide a brief explanation, you should be fine. I think you do not need to give much detail. Maybe just note the arrest and that it was for political reasons (or whatever the reason is) and indicate that this was discussed in the asylum case. As long as USCIS cannot accuse you of trying to hide something, you will be fine. Take care, Jason
Do you have some insider info that Thomas and/or alito plan to strategically retire ? That will be very bad and I wish that there is a way we can prevent that from happening.
I do not know about that. Take care, Jason
Hi Jason,
Is it safe to travel to visit family in third country with RTD while green card application is pending?, thank you so much.
I have not heard about any asylee who had trouble returning to the US with an RTD, so as long as you do not have criminal issues and you return while the RTD is valid, you should be ok. Take care, Jason
Jason, do you have a sense of how people without criminal convictions but U.S. arrests are being treated by immigration at U.S. airports?
My partner has an arrest with no charges filed and charges can no longer be filed — the statute of limitations is up. (This was an alleged domestic violence arrest however). She has a green card based on asylum status. I know it is best for her to stay in the U.S. but her mother is very sick and she may choose to fly back to her home country, however briefly. She has 2 years left before she can apply for citizenship so she is in a bind.
A lot of the nightmare stories for green card holders seem to be related to convictions, not arrests, but based on her past travel, it seems like customs / border patrol can see she has had an arrest. (She has been interviewed after landing but always released).
It seems very risky but … family is family. Was wondering what you think when you have a moment. Thank you so much
I have not heard about someone in that situation having a problem. There might be an issue if the charge was dismissed after she admitted guilt in some way. By – for example – doing community service or taking a class (this can be called “probation before judgement”). If the charge was dismissed with no actual or implied admission of guilt (for example, if it was never brought to a court), I think she should be ok. It would be a good idea to get copies of the “disposition” (final outcome) for each arrest, and if there is a question or you are not sure, have a lawyer look at it before she travels. It sounds like she will be ok, but it is better to be careful these days. Take care, Jason
Hi Jason,
I was counting down for the naturalization process to get my US citizenship after waiting for so may years through the asylum process. I am eligible to submit my application soon. I’ve been working on full time jobs simultaneously as an IT expert. I was wondering if this could be a problem while submitting my tax documents. Will this be an issue?
As long as you properly file your taxes, you should be fine. I don’t see how working several jobs would be an issue. Take care, Jason
Thank you for all you do for the asylum community ????.
I recently won my asylum case with asylum office in new york in April this year with my wife and 3 children after 10 years of filling. I want to apply for i 485 green card and I cannot come up with the lawyer fees.NB my first child is 30 years now and he is a derivative on my case. We filled when he was 20 yesterday old.
Please advice :can I fill and submit the application myself or is it compulsory i go tru a lawyer?
You can file yourself. The most important thing is to make sure your application is consistent with your old forms and visa applications. So for example, if you said that you were a member of a political party in your asylum case, you need to mention that on the I-485 where it asks about organizations. I do not know if there are any unusual issues or problems in your case, and maybe you want to at least consult with a lawyer before you file to see whether the lawyer notes any problems that you need to deal with. Also, remember that if your children get married, they basically lose their ability to get a green card until they file their own asylum application (this is a formality called a nunc pro tunc asylum, but it will probably delay their GC by several years). Take care, Jason
Thanks so much for your prompt response, my son was married but has been divorced now for 3years, could this affect his i_485 application, my other son was accused of theft and was ordered community service ,attend anti_theft class and pay restitution .Is there likely to constitute any issues?
In this case, your son should definitely talk to a lawyer before applying for his green card. I think that since he is divorced, he will still qualify for the GC and will not need the nunc pro tunc asylum case, but a lawyer can double check to be sure. Also, the criminal issue could be a problem for him. He should collect all the documents related to any arrests or charges, especially the “dispositions” (final outcomes) and then he can have a lawyer review all that. He should do that before he applies for any immigration benefits and if he has plans to travel outside the US, he should talk to a lawyer before that as well. Take care, Jason
Hi Jason,
Between(10+ years) interviews, courts and multiple lawyer i’ve lost my original expired passport…i do have copies, but when and IF i will have my asylum GC interview can i bring copies and explain the situation?i do have DLs,RTD and EAD, would this be an issue?have i ever had this issue with your clients?
If you don’t have it, you don’t have it. You will just have to bring what you do have. If you have any other original identity document from your country, you should bring those (any old passports, birth certificate, national ID, school records, etc.). I have had clients get asylum and get a green card without the original passport, but these days they are more strict, and so you should gather as much original evidence as you can. Take care, Jason
Hi Jason,
I already have my RTD, got it with the hope that meanwhile I get my GC, but unfortunately yet to receive it. Since my RTD expires in a couple of months, and I need to apply again and the average waiting time is 14 months currently; can I apply for a new RTD while my current one hasn’t been expired yet? Thank you
You can apply again for an RTD, but under the rules, you are supposed to send USCIS the original RTD if it is still valid. I have heard about some people who do not send an original, and then USCIS requests it, and so they send the original when (and if) USCIS asks for it. I have not tried that myself and the rule does say that you are supposed to send them the original. If you do not plan to use the RTD, then there is no reason to not send it, I guess. Take care, Jason
Hi Jason, thanks for all you do, I have been reading a lot of your articles lately and it has been super helpful. I have a J1 visa about to expire and a waiver for 212e in process, I’m part of the LGBT community, and I will get married soon. My fiancé has an asylum case in process and I consider it strong but she applied after being 3 years in the country (she had a J1 and F1 visa but stayed without status for a year before applying for asylum), we are considering adding me to her case but I am worried about the one year bar with her case. Then, I would be eligible until March to create my own case before the deadline, but I’m worried that my case is definitely not that strong, I don’t know if being part of the LGBT community but coming from a Ecuador where gay marriage is legal and there is a few government-funded institutes to help would affect my case somehow. My fiancé has letters from her therapist to justify the circumstances and time after the one year bar. Do you think we should work with her case or would I be better on my own?, in that case could we be added to both cases as dependents?. We are currently waiting for a consultation but I would like to have some insight. Thank you so much again for all the information.
The J-1 waiver is only useful if you have some way to get a green card, such as through employment (if you win asylum, the home residency requirement is automatically waived). Assuming you do have such a path, that would be a good idea to pursue, with her as a dependent if you are married by then. In terms of your possible case, if you file for asylum now, there is a good chance you will get a fast interview (within a few months), as most new cases receive interviews these days. If the case is weak, that is probably not a good idea, but it really depends on the specifics of your situation as well as country conditions in Ecuador. It sounds like the law in Ecuador is favorable, but does that help LGBT people on the ground? Are they safe? Are there human rights reports, news articles or other sources of information showing that gay people face persecution? I think if you have a strong case, it may be worth pursuing, especially if you do not have another path to status in the US. Finally, in terms of your fiance’s case, the one year bar can be very difficult to overcome, and so even with a strong case, she may have a hard time. She will need to explain her one year out of status. Maybe she had difficulty coming out, which is a common problem for LGBT asylum seekers, or maybe it was something else, but explaining the late filing will be key. A therapist report can help in that regard, though some reports are better than others (for example, a report from a treating therapist is better than a report from a therapist that she sees one time and who gives her a diagnosis). I wrote about the one-year bar on January 18, 2018, and about the one-year bar and LGBT cases on February 15, 2018. Also, if you want to add your self to her case once you are married, you can try to do that, but the process is a mess and–while it sometimes works smoothly–it could take several years or not work at all. I wrote about this process on March 29, 2023. Take care, Jason
Why is that ?
I am reviewing cases and I ran into this UN guideline and I have a few questions.
https://www.unhcr.org/us/sites/en-us/files/legacy-pdf/631f45ad9.pdf
1) In your experience, do decision makers typically pay some attention to UN documents ? After all, UNHCR is a legitimate organization, right ?
2) One of the harm described by this document is “Moreover, masking one’s identity may
itself cause serious psychological harm that may rise to the level of persecution.” I imagine this is particularly relevant to some subgroups of lgbt cases… I believe that if this counts as a form of harm, it will make the case stronger…What’s your opinion and experience ? In my research, I haven’t see asylum adjudicators consider this as a form of harm…even tho it should be counted as a form of harm…but I haven’t seen doesn’t mean it doesn’t exist…so in your experience, do adjudicators consider this as a form of harm ?
I wonder if I have to heavily rely on UN’s documents because the most prominent country condition evidence – the country report…has been deliberately curtailed to make all the countries appear less dangerous…
But outside of US government documents. Typically, what kind of country condition evidence do your cases usually use ? And how receptive judges are to these non-US government documents ? My worry is that, I could encounter an adjudicator that only accept US government documents…and if the U.S. govt documents don’t show a clear danger… then they will just not accept anything else regarding country condition and deny asylum.
Like will they accept evidence from New York Times ? BBC ? Amnesty International ? UN ? Human Rights First ?
Please advise…
All those sorts of country condition evidence, plus news articles and expert reports, can be helpful. Take care, Jason
1 – Decision-makers can consider UN documents, and if we have helpful documents, we submit them with other evidence. We also sometimes rely on them in legal arguments. 2 – We typically argue that the person is unable to hide their identity, as that is usually the case once they come “out” in the US. However, harm caused by trying to live in hiding can be considered as part of the asylum analysis. Take care, Jason
I am glad you agree with my thinking and I am glad to hear that it seems to have been working for your cases, as it should be if INA and adjudicators respect the UN asylum principle.
Hi Jason, i have a pending affirmative asylum with uscis as i came through a tourist visa. But i live with roommates who came through the southern border and all have immigration court cases. Am I also subject to detention by ICE in case of any raids on our house?
yes
Jason can clarify this. However I don’t thing you will be detained, even if you are detained you can be bailed out. Only thing is if you are cought commiting crime or in a sting operation then you are done.
I have not seen people who entered the US with a visa and filed for asylum being detained. Unless you have some criminal issues, if you were detained, you would be eligible for bond. Your roommate, on the other hand, is subject to mandatory detention under new rules that basically say anyone who entered at the border should be detained (there is an ongoing legal fight about these new rules, so this could change). Even so, not all such people are being detained, as there are millions of them and the government does not have the capacity to detain them all. While it is probably unlikely that ICE would come to the house to get your roommate, especially since they can detain him at an ICE check-in or in court, they could, and if that happened, I think there is some risk to you, since ICE seems pretty lawless and willing to detain people who they encounter. Again, I think the likelihood of this is law, but it would not hurt to be prepared, just in case something happens. I wrote about detention in court on June 4, 2025, and I wrote about how to prepare so you are ready in case you are detained on January 8, 2025. Take care, Jason
Hi Jason,
My asylum case was recently referred to the Immigration Court due to the one-year filing deadline. I arrived in the U.S. in 2022 on an F-1 visa and maintained lawful status until March 31, 2025. After my STEM OPT was denied in February 2025 because of a school error, I filed for asylum on July 29, about four months later. My interview on September 17 went smoothly, and the officer seemed sympathetic. Could you please let me know if this filing timeframe is reasonable and what I should do next? I feel quite lost right now. Thank you very much.
Best,
Jane
You have to file within a “reasonable time” of when your status ended, and with an F-1 visa, it is often not entirely clear when your status ended. Maybe the last day that you had class? You can argue that it was after that (I think there is a 30-day grace period), but that always seemed a bit fuzzy to me. Also, I have seen different cases discussing the one-year bar and late filing. Two or three months after your status ends is generally considered a “reasonable” amount of time, and 6 months may be too long. I think you will have to make the best argument you can. You do not have to rely only on the fact that you were in status and filed within a reasonable time of when your status ended. You can also try to meet other exceptions to the one-year rule, such as changed circumstances. I wrote more about the one-year rule on January 18, 2018. Take care, Jason
Thank you very much. It’s very helpful.
Hello sir, My question who is undocumented? Who enter USA by visa and applied for asylum and get EAD is he undocumented? If anybody has no criminal record and stay with EAD is he can arrested by ICE?
The term “undocumented” is not a term in the law. Someone who entered with a visa and applied for asylum is allowed to stay here and has a pending application. Such a person can be legally detained, though they would be eligible for release on bond and I have not heard about such people being detained by ICE. Take care, Jason
Some people don’t want to be associated with that because it does contain a negative undertone…
It may cause discrimination if a person is outed as “undocumented”.
In your opinion, for an affirmative asylum seeker with an EAD (legal entry, applied for asylum while in status)…can this person in anyway be rightfully not labeled “undocumented” ?
This person has lawful presence…has an EAD…I mean…so he has some…documentation…right ? so maybe he is…”documented” ?
Since “undocumented” is not a term in the law, anyone can use it for any reason, and to me, it has little meaning. Take care, Jason
I agree with you. It’s a PC term to respond to the negative connotation associated with “illegal immigrant”.
The core issue here is … how do we educate people that people cross the border or overstay…for legitimate reasons…
Because to a lot of MAGAs…all noncitizens are some law breakers…this is one of the most important work for asylum advocates in the next decade…because if their opinions regarding asylum seekers cannot change, they will always vote right wing politicians…And whatever progress the asylum advocates made will be erased or reversed…
Hello Jason,
I’m drafting my N400 application which Im eligible to submit mid November, I received my green card based on an approved asylum application, as Im going through the N400 application, I wonder what option I should select for the basis of eligibility question , there are 7 options there, 5 of them are not applicable, but Im not sure which option to select between ” general provision & other “, as there no clear instruction that explain the categories that are covered by the general provision option.
Thank you in advance.
I don’t remember the specific question, but an asylee who has a GC would normally apply for citizenship on the basis of having been a lawful permanent resident for 5+ years. Take care, Jason
Hi dear Jason and fellow asylum granted folks.
Is anyone received there greencard recently or month or two ago. I’m waiting for my greencard and don’t know what’s going with uscis.
Tried expediting my application but they are still not moving forward, they are slowing the process intentionally.
I sent my application February 2024 no news so far and friend of mine sent October 2023 has not received green card yet, i do not know how long more we need to wait, it is so disappointing.
I sent Apr-2023 , still waiting (:
Wait times for a GC are unpredictable, but we do see people getting their GCs based on asylum, so such cases are still moving. Also, while USCIS is fee funded and operating during the government shutdown, some functions are slower and I do not know whether this is affecting GC applications. Take care, Jason
Hi Jason,
Thank you for all you do here,we appreciate it.
Please can one’s case be in another state while you work and live in another state?
I was once in NJ moved to TX including application, and was in TX for interview in 2022 and due to no good job,in November 2022 I moved back to NJ but moved back to TX in early 2024 and applied for my new EAD and approved in April 2024 in my TX address.
Meanwhile my court hearing or referral was sent to my NJ address and jurisdiction. Now I work with state government of TX which i started a year ago,but my hearing is still in Newark,NJ. A lawyer told me to leave my application in Newark even though I work and live in TX.
My question is this, won’t this impact negatively on my application? And has it been done that way by you?
Thank you.
If you have a basis to claim that you still live in NJ (you keep a home there, spend a lot of time there, have family there, pay taxes there), I think you can leave the case there. However, if your home, job, taxes, driver’s license, etc. are in Texas, I think you need to inform the court about the new address. You do not have to ask the court to move the case, though the court may do so automatically (or maybe it won’t). But failing to inform the court about the move could result in them accusing you of lying about your address, which is not good for credibility. Also, it is required that you update your address, and though I have never seen it happen, I think failing to update the address can be used as another basis of removability in your case. Take care, Jason
Hi Jason. Can a Asylee with Green Card travel on his home country passport to any third country? He renewed his passport online and got it by mail to USA. He do not have RTD.
Another Question is that by renewal of Home country passport will effect his Citizenship N400 Application?
Renewing the passport and using the passport could be red flags to USCIS that the case was fraudulent:why would a government that seeks to harm you allow you to renew a passport? Why would you use a passport from a country that wants to harm you? The person should be able to explain this. It is easier if the person fears non-state actors as opposed to the government. Ideally, you should use an RTD to travel, but in practical terms that can be difficult. I wrote more about this issue on May 25, 2022. Take care, Jason
we renewed our home country passport and traveled to Canada. CBP agent did asked me even a signle question everything was very smooth. But, it is always recommended to use RTD.
Hello Jason,hope you are doing well. I have few questions regarding green card and rtd. My mom recently applied for green card and I am applying soon. We had individual cases and our approvals were almost 1 year apart. My mom wants to travel and meet with her son in a third country. It’s been 10 years that she had met my brother. She is having health issues and Also she is mentally not doing well. I am her caretaker and I stay with her all the time. I want to apply for expedited request for her green card. The question is that she doesn’t have a valid passport that she can use. What do we need to do in her case? Also she cannot travel alone by her self I have to be with her. Can I request along with her applications and mention about her case ? How will this work?
It sounds like you both need an RTD. Some countries do not accept the RTD as a passport, and so you will have to check their embassy website or contact them to see if you can travel there using the RTD. You can try to expedite the RTD, though this is not easy. I wrote about expediting in general on January 29, 2020 and maybe that would help. The issues you describe about her health and your need to travel with her could be a basis to try to expedite. Until you have green cards, there is no way for you to travel and re-enter the US without the RTD, but once you have GCs, you could potentially travel and re-enter with your passport, assuming you can get a passport. It is better to have the RTD, but you could travel with the passport and re-enter with the GC. I wrote about this on May 25, 2022. Unfortunately, it is not easy to expedite a case, but it may be possible and is worth a try. Finally, so you know, you do not have to wait one year after getting asylum to file for the GC. I am recommending 6 months, but you can file sooner than that if you prefer. I wrote about the reasoning for this on February 6, 2023. Take care, Jason
Hi Jason is this news is true
https://www.newsweek.com/uscis-ending-work-authorization-ead-automatic-extensions-10958565
It is true and it will hurt a lot of asylum seekers and others who have EADs while their cases are pending. Take care, Jason
I remember I said the power imbalance of the admin and asylum advocates… it is still very much true asylum advocates can barely do anything to this harmful governmental policies…and not able to hold the admin accountable.
Hello Jason,
Thank you for your article. Reading your work is always both interesting and informative.
I have several questions related to your article and my asylum case, which concerns fabricated criminal prosecution. In your view, does Russia’s withdrawal from the Convention Against Torture, which took place last month, constitute circumstances that should be reported to USCIS at this time? Would this fall under the precedent case Matter of M-A-F-, 26 I&N Dec. 651 (BIA 2015)?
In addition, the person whose actions forced me to seek asylum has been included in the sanctions lists of many countries, including the United States. I need to prove that he acted in collusion with the authorities. In your opinion, could the fact of his inclusion on these sanctions lists serve as confirmation of such collusion? Should I send this information to USCIS now, as you suggest in your article?
Lastly, if we submit new documents regarding my case now, would it expedite USCIS’s interview, or would it likely not affect the processing time?
Thank you very much for sharing your views.
1 – Unless Russia withdrawing from the treaty creates a new reason to persecute you or there is a different persecutor, I would not think this implicates Matter of M-A-F-. 2 – If the persecutor is on a sanction list, I suppose that at least help prove he is a bad actor. It may also help prove collusion, depending on the details contained in the sanction notice. I do not know that this is a new basis for asylum, but if you think it is, you can send it to USCIS (and keep proof that you sent it, as USCIS may not match what you send with your pending case, especially if you are sending it by mail). 3 – I do not think that sending new documents would affect the processing time for the case, but I do not know for sure. Take care, Jason
Hi Jason, what do you think about https://www.uscis.gov/newsroom/news-releases/dhs-ends-automatic-extension-of-employment-authorization ? The law still allows to apply for renewal only 180 days prior, and current renewal times are more than 6 months, without extension people will loose their jobs, do you think it can be can it be challenged in court?
The was a surprise from USCIS, and there was no warning (though I heard some vague rumors from USCIS people about a change to EADs, but I did not know it would be this). While USCIS “recommends” that people file 180 days before the current card expires, I believe you can file earlier than that (unless this rule changes the time to file; I have not yet read the whole thing). It will likely result in people having gaps in their ability to work. Also, it may make employers less likely to hire people with temporary EADs, as they do not want to face fines from DHS if they don’t keep careful track of when each employees EAD expires. I will try to write a post about this once I know more, but it will clearly hurt many asylum seekers and also others who rely on EADs while their cases are pending. Take care, Jason