The two ways of obtaining asylum in the United States are through the affirmative process and defensive process. A person who requests asylum in the United States is called an asylee.
Affirmative Asylum Processing With USCIS
To obtain asylum through the affirmative asylum process you must be physically present in the United States. You may apply for asylum status regardless of how you arrived in the United States or your current immigration status.
You must apply for asylum within one year of the date of their last arrival in the United States, unless you can show:
- Changed circumstances that materially affect your eligibility for asylum or extraordinary circumstances relating to the delay in filing;
- You filed within a reasonable amount of time given those circumstances.
You may apply for affirmative asylum by submitting Form I-589, Application for Asylum and for Withholding of Removal, to USCIS.
The Asylum Officer will conduct a non-adversarial interview to determine if a credible fear of persecution (CFP) or torture were found.
If your case is not approved (CFP or torture not found) and you do not have a legal immigration status, you will be issued a Form I-862, Notice to Appear (NTA), and the case will be forwarded (or referred) to an Immigration Judge at the Executive Office for Immigration Review (EOIR). The Immigration Judge conducts a new (‘de novo’) hearing and issues a decision that is independent of the decision made by USCIS. See ‘Defensive Asylum Processing With EOIR’ below if this situation applies to you.
Affirmative asylum applicants are rarely detained by U.S. Immigration and Customs Enforcement (ICE). You may live in the United States while your application is pending before USCIS. If you are found ineligible, you can remain in the United States while your application is pending with the Immigration Judge.
While your application is pending, you may file for Employment Authorization Document (EAD). Please go to RESOURCES on this website and read When Can Asylum Applicants Get a Work Permit (EAD Card)?
Defensive Asylum Processing with EOIR
A defensive application for asylum occurs when you request asylum as a defense against removal from the U.S. For asylum processing to be defensive, you must be in removal proceedings in immigration court with the Executive Office for Immigration Review (EOIR).
Individuals are generally placed into defensive asylum processing in one of two ways:
- They are referred to an Immigration Judge by USCIS after they have been determined to be ineligible for asylum at the end of the affirmative asylum process, or
- They are placed in removal proceedings because they:
- Were apprehended (or caught) in the United States or at a U.S. port of entry without proper legal documents or in violation of their immigration status, OR
- Were caught by U.S. Customs and Border Protection (CBP) trying to enter the United States without proper documentation, were placed in the expedited removal process, and were found to have a credible fear of persecution or torture by an Asylum Officer. For more information on the Credible Fear Process, see the “Questions & Answers: Credible Fear Screenings” click here. (link https://www.uscis.gov/humanitarian/refugees-asylum/asylum/questions-answers-credible-fear-screening)
Immigration Judges hear defensive asylum cases in adversarial (courtroom-like) proceedings. The judge will hear arguments from both of the following parties:
- The individual (and his or her attorney, if represented)·
- The U.S. Government, which is represented by an attorney from Immigration and Customs Enforcement (ICE)
The Immigration Judge then decides whether the individual is eligible for asylum. If found eligible, the Immigration Judge will order asylum to be granted. If found ineligible for asylum, the Immigration Judge will determine whether the individual is eligible for any other forms of relief from removal. If found ineligible for other forms of relief, the Immigration Judge will order the individual to be removed from the United States. The Immigration Judge’s decision can be appealed by either party.
After a year of approval for asylee status, whether by Affirmative Processing through the USCIS or by Defensive Processing through the Immigration Court, the asylee can apply for U.S. permanent resident status (LPR, or a green card). Four years after that, the asylee can apply for U.S. citizenship.
For information about the grant of asylum by an Immigration Judge, see the “Granted a Green Card by an Immigration Judge” click here. (https://www.uscis.gov/green-card/after-green-card-granted/granted-green-card-immigration-judge-or-board-immigration-appeals)
For information about the Executive Office for Immigration Review, including the Immigration Courts and the Board of Immigration Appeals, see the “Executive Office for Immigration Review” click here. (https://www.justice.gov/eoir)
“WHEN YOUR IMMIGRATION MATTERS – CALL”
Eugene Lumelsky
153 Worthington Ave, Shrewsbury, MA 01545
Call 508-798-5757
Email: eugenelumelsky@yahoo.com