Asylum

The United States asylum program provides protection to qualified refugees.

The United States asylum program.

There are thousands of people coming to the United States in need of protection because they have been persecuted or they fear they will be persecuted because of their race, nationality, religion, membership in a particular social group, or their political opinions. Those who are found to be eligible for asylum are permitted to stay in the United States.The United States asylum program provides protection to qualified refugees who are already in the United States or are seeking entry into the United States. Asylum seekers may apply for asylum in the United States regardless of their countries of origin. There are no quotas on the number of individuals who may be granted asylum each year.

The two main ways of obtaining asylum in the US are through the affirmative process the defensive process. The crucial difference between affirmative and defensive asylum process is that an affirmative asylum seeker has not been placed in removal proceedings, and a defensive asylum seeker has been placed in removal proceedings in Immigration Court.

Affirmative asylum processing with USCIS.

In the affirmative asylum process, individuals who are physically present in the United States, regardless of how they got here and regardless of their current immigration status, may apply for asylum. They do so by submitting an application to USCIS. Asylum seekers must apply for asylum within one year from the date of last arrival in the United States, unless they can show changed circumstances which materially affect their eligibility or extraordinary circumstances related to the delay in filing, and that they filed an application to USCIS within a reasonable amount of time given those circumstances. They file an asylum application form I-589 by sending it to a USCIS service center and are seen by Asylum Officers.

Affirmative asylum applicants are almost never detained. They are free to live in the U.S. pending the completion of their asylum processing with USCIS. Usually, an affirmative asylum applicant is interviewed by USCIS within 43 days of application and, if not approved, is referred by USCIS to an Immigration Judge at the Executive Office for Immigration Review EOIR for further consideration. Asylum applicants referred to an Immigration Judge for such processing are also not detained. The process is usually completed within 6 months of the application, including processing by the Immigration Judge if USCIS could not approve the application and referred it to the judge. If USCIS can approve the application, the decision is usually issued within 60 days from the application. During this time, most asylum applicants are not authorized to work.

Defensive asylum processing.

Immigration Judges with the Executive Office for Immigration Review EOIR hear asylum applications only in the context of defensive asylum proceedings. That means, applicants request asylum as a defense against removal from the United States. Immigration Judges hear such cases in adversarial, court room like, proceedings. A judge hears the applicant’s claim and also hears any concerns about the validity of the claim raised by the Government, which is represented by an attorney. The judge then makes a determination of eligibility. If the applicant is found ineligible for asylum, the the judge determines whether the applicant is eligible for any other forms of relief from removal and, if not, will order the individual to be removed from the United States. Aliens are placed into defensive asylum processing in ways: they are referred to an immigration judge by Asylum Officers who did not grant asylum to them, or they are placed in removal proceedings because they are undocumented or they were in violation of their status when apprehended in the U.S.

Individuals arriving at an immigration port of entry without proper documentation.

Some of the individuals arriving at an immigration POE without proper documentation are genuine asylum seekers fleeing persecution in their home country. Because of the circumstances of their flight from their homes and departure from their countries, they may arrive in the U.S. with no documents or with fraudulent documents obtained as the only way out of their country. Any person subject to expedited removal who raises a claim for asylum, or expresses fear of removal is given the opportunity to explain his or her fears to an Asylum Officer. Because some refugees may be hesitant to come forward with a request for protection at the time of arrival, immigration policy and procedures require INS inspectors to ask each individual who may be subject to expedited removal the series of protection questions to identify anyone who is afraid of return to their home country.