Westchester Immigration Attorney

Last Updated on: 11th October 2025, 11:05 am

Westchester Immigration Attorney: Asylum Applications

Thanks for visiting Spodek Law Group. We’re a second-generation immigration law firm managed by Todd Spodek – with over 40 years of combined experience handling asylum applications throughout Westchester County and the New York area. You might know us from the Anna Delvey case that became a Netflix series, or our representation in the Ghislaine Maxwell juror matter. You fled persecution in your home country and you need asylum in the United States – but you don’t know whether to file affirmative asylum with USCIS or defensive asylum in immigration court, you’re not sure if you missed the one-year deadline, or you just learned asylum applications now cost $100. This article covers affirmative versus defensive asylum, the one-year filing deadline and exceptions, new filing fees that took effect in 2025, credible fear interviews, and current processing backlogs.

Affirmative Asylum Versus Defensive Asylum

Two separate processes exist for applying for asylum depending on whether you’re in removal proceedings. Understanding which applies to your situation determines where you file and how your case proceeds.

Affirmative Asylum Through USCIS

If you’re not in removal proceedings – you file affirmative asylum with USCIS. This applies when you entered the United States legally (with a visa) or entered without inspection but haven’t been caught by immigration authorities. You file Form I-589 with the asylum office that has jurisdiction over where you live.

USCIS schedules you for a non-adversarial interview with an asylum officer who asks about your persecution claim. There’s no government attorney trying to get you deported – just you, the asylum officer, and your attorney if you have one. The officer either grants asylum, refers you to immigration court for a removal hearing if you’re removable, or issues a denial if you have legal status.

As of December 31, 2024, 1.4 million affirmative asylum applications were pending with USCIS. Wait times vary dramatically – some cases take months, others take years before you get an interview.

Defensive Asylum In Immigration Court

If you’re already in removal proceedings – you file defensive asylum with the immigration judge, not USCIS. This happens when ICE arrests you, when CBP apprehends you at the border, or when USCIS refers your affirmative asylum case to court after finding you removable.

Defensive asylum is adversarial – an ICE attorney argues you should be deported, you present evidence showing you deserve asylum, and the immigration judge decides. At the end of FY 2024, 1.47 million defensive asylum applications were pending in immigration courts. The average wait for people who ultimately got relief in FY 2024 was 1,283 days – over three and a half years.

The One-Year Filing Deadline

You must file your asylum application within one year of arriving in the United States. Miss the deadline, and you’re barred from asylum unless you qualify for an exception.

When The Clock Starts

The one-year clock starts on the date of your last arrival in the United States. If you entered once in 2020, left, then returned in 2024 – the clock started with your 2024 entry. If you’ve been here continuously since 2015 and never left – the clock started in 2015, and you’re way past the deadline unless you have an exception.

The deadline is strict. Filing on day 366 is late. USCIS and immigration judges will deny asylum based solely on the missed deadline even if you have a strong persecution claim.

Exceptions To The Deadline

Two types of exceptions exist – changed circumstances and extraordinary circumstances. Changed circumstances means something materially affecting your asylum eligibility changed after you arrived. Examples: your country’s government changed and now persecutes your ethnic group, you became active in political opposition after arriving and now face persecution if you return, your sexual orientation became known to persecutors after you arrived.

Extraordinary circumstances means something beyond your control prevented you from filing on time. Examples: serious illness, mental disability, ineffective assistance of counsel who failed to file on time, you were in legal status and filing would have required acknowledging you intended to stay permanently.

Even with an exception, you must file within a reasonable time after the circumstances that prevented timely filing resolved. If you had changed circumstances in January 2024 but didn’t file until December 2025 – the judge will likely find that’s not reasonable.

New Asylum Filing Fees Effective 2025

Starting July 22, 2025, it costs $100 to submit a new asylum application to USCIS. Additionally, Public Law 119-21 requires all people with pending Form I-589 to pay an Annual Asylum Fee of $100 for each calendar year their application remains pending.

Immigration Court Fee Requirements

On September 23, 2025, immigration courts announced a new process for paying the $100 filing fee for defensive asylum applications. Applicants must pay the fee before submitting their application and include the receipt with their submission.

This is a major change – asylum applications were previously free. The $100 filing fee plus $100 annual fees add up quickly when cases take years. Someone whose case is pending three years pays $100 to file plus $300 in annual fees – $400 total.

Fee Waivers And Exemptions

USCIS regulations allow fee waivers for asylum applicants who can’t afford the fee, but the waiver process requires documentation of financial hardship. Immigration courts have similar waiver procedures, though not all judges grant them readily.

Unaccompanied children filing asylum applications are exempt from the fees. If you were under 18 and arrived without a parent or legal guardian – you don’t pay filing or annual fees.

Credible Fear Interviews For Border Arrivals

If CBP apprehends you at the border or a port of entry without valid entry documents – you go through expedited removal unless you express fear of persecution or torture. When you express fear, CBP refers you to an asylum officer for a credible fear interview.

What Happens During Credible Fear Interviews

If an asylum officer finds credible fear, USCIS may either retain your case and schedule a second interview to consider your asylum application, or issue a Notice to Appear placing you in removal proceedings before an immigration judge where you’ll present your defensive asylum claim.

If the asylum officer finds no credible fear – you’re deported through expedited removal with no hearing before an immigration judge. You can request review of the negative credible fear finding by an immigration judge, but that review happens quickly with limited procedural protections.

2025 Policy Changes Affecting Border Asylum

On January 20, 2025, the Trump administration issued a proclamation purporting to prohibit most people crossing the southern border from applying for protection. The CBP One app – which the Biden administration used for scheduling asylum interviews – was immediately disabled, all existing appointments were canceled, and the app was repurposed as a self-deportation reporting system.

A 2023 rule called “Circumvention of Lawful Pathways” applies to people arriving at the southwest land border after traveling through a third country. The rule creates a presumption of asylum ineligibility unless certain exceptions apply – like you applied for protection in a country you traveled through and were denied, or you faced imminent threats while traveling.

Current Asylum Processing Backlogs

Both affirmative and defensive asylum face massive backlogs. The 1.4 million affirmative cases pending with USCIS and 1.47 million defensive cases pending in immigration courts mean years-long waits for most applicants.

What The Backlog Means For You

Long waits create uncertainty. You can’t work legally until 150 days after filing your asylum application, and even then you only get work authorization if USCIS or the immigration court hasn’t decided your case. If your case is decided within 150 days – which almost never happens – you don’t get work authorization during the process.

You also can’t travel outside the United States while your asylum application is pending without getting advance parole, and advance parole for asylum applicants is rarely granted. Leaving without advance parole abandons your asylum application.

Annual Fees Add Up During Long Waits

The new $100 annual fee means the longer USCIS or the immigration court takes to decide your case, the more you pay. A case that takes four years costs $400 in annual fees on top of the $100 filing fee. You don’t get a refund if your asylum is denied – you paid the fees for processing, not for approval.

Why You Need An Asylum Attorney

Asylum cases require detailed evidence of persecution, country condition reports, expert witness declarations, and legal arguments about the five protected grounds – race, religion, nationality, political opinion, and membership in a particular social group. Our immigration attorneys prepare asylum applications, represent clients at USCIS asylum interviews, litigate defensive asylum cases before immigration judges, and handle appeals to the Board of Immigration Appeals and federal courts when cases are denied.

Todd Spodek grew up in Brooklyn working for his father’s law firm before attending Northeastern University and Pace Law School. Our law firm has handled thousands of immigration cases since 1976 – including cases featured in major media outlets, like the New York Post, Newsweek, and Bloomberg.

If you need to file asylum, if you missed the one-year deadline and need to argue an exception, if USCIS or an immigration judge denied your asylum claim, if you have a credible fear interview scheduled, if you’re in removal proceedings and need to file defensive asylum – contact our immigration attorneys. We’re available 24/7 at our offices throughout Westchester County, NYC, and Long Island.