The two main ways of obtaining asylum in the United States
are through the affirmative process and through the defensive
process.
Key
Differences Between “Affirmative” and “Defensive” Asylum Process
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Affirmative
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Defensive
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Asylum-seeker
has not been placed in removal proceedings
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Asylum-seeker
has been placed in removal proceedings in Immigration Court
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Asylum-seeker
affirmatively submits his or her asylum application to a USCIS Service
Center
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Asylum-seeker:
- Is referred by an Asylum
Officer
- Is placed in removal
proceedings for immigration violations, or
- Tried to enter the U.S.
at a port-of-entry without proper documents and was found to have a
credible fear of persecution or torture
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Asylum-seeker
appears before a USCIS Asylum Officer
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Asylum-seeker
appears before an Immigration Judge with the Executive Office for
Immigration Review
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Non-adversarial
interview
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Adversarial
court hearing
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U.S. “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
“affirmatively” by submitting an application to USCIS. In keeping with
the idea that a genuine asylum-seeker should present himself/herself to
authorities “without delay,” 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 that materially affect their eligibility or
extraordinary circumstances relating to the delay in filing, and that they
filed 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 – in non-adversarial interviews. The interviews
take place at one of the eight Asylum Offices throughout the U.S. or, if
the applicant lives far from one of those offices, at a District Office.
It is important to note
that 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 and, if found
ineligible by USCIS, then with an Immigration Judge (see U.S. “Defensive” Asylum
Processing with EOIR).
Normally, 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 and de novo
consideration.
The time period is
somewhat longer if the applicant does not reside near one of the eight Asylum
Offices and an Asylum Officer is required to go to a distant District Office
to conduct the interview. Asylum applicants referred to an Immigration
Judge for such processing are also not detained.
Since the successful
asylum reforms of 1995, this processing is usually completed within 6 months
of the initial 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 initial application. During this time, most asylum
applicants are not authorized to work. For more details on the
procedures and timeframes involved in this processing, see What is the
Affirmative Asylum Process?.
For the latest
statistics on the affirmative asylum program, see the Monthly Statistical
Report, a publication of the DHS Office of Immigration Statistics.
U.S.
“Defensive” Asylum Processing with EOIR
Immigration Judges with
the Executive Office for Immigration Review (EOIR) hear asylum applications
only in the context of “defensive” asylum proceedings. That is,
applicants request asylum as a defense against removal from the United States.
Immigration Judges (IJs)
hear such cases in adversarial (court-room-like) proceedings: the IJ
is the judge that 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 IJ then makes a determination of
eligibility.
If the applicant is not
found eligible for asylum, the IJ determines whether the applicant is
eligible for any other forms of relief from removal and, if not, will order
the individual removed from the United States.
Aliens generally are
placed into defensive asylum processing in one of two ways:
- they are referred to an IJ
by Asylum Officers who did not grant asylum to them, or
- they are placed in removal
proceedings because they
- are undocumented or in
violation of their status when apprehended in the U.S. or
- were caught trying to enter
the U.S.
without proper documentation (usually at a port-of-entry) and were
found to have a credible fear of persecution or torture.
For information on the
process after being granted asylum before an Immigration Judge, see “Notice
to Individuals Granted Immigration Benefits by Immigration Judge or Board of
Immigration Appeals (BIA)”.
Asylum-Seekers
and Expedited Removal
Most undocumented
migrants stopped by immigration officials at a U.S. port-of-entry (POE) may be
subject to expedited removal. This means that, for
persons other than genuine asylum seekers, refusal of admission and/or
removal from the United
States can be effected quickly.
However, 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 – will be given the opportunity to explain his or her fears to
an Asylum Officer.
Recognizing that some
refugees may be hesitant to come forward with a request for protection at the
time of arrival, immigration policy and procedures require Inspectors to ask
each individual who may be subject to expedited removal the following series
of “protection questions” to identify anyone who is afraid of return:
- Why did you leave your home
country or country of last residence?
- Do you have any fear or
concern about being returned to your home country or being removed from
the United States?
- Would you be harmed if you
were returned to your home country or country of last residence?
- Do you have any questions or
is there anything else you would like to add?
If the individual
expresses a fear of return, the individual is detained and given an interview
by an Asylum Officer. The role of the Asylum Officer is as an Asylum
Pre-Screening Officer (APSO) who interviews the person to determine if he or
she has a credible fear of persecution or torture. This
is a standard that is broader -- and the burden of proof easier to meet --
than the well-founded fear of persecution standard needed to obtain
asylum. Those found to have a “credible fear” are referred to an
Immigration Judge to hear and then judge their asylum claims.
This places the asylum
seeker on the “defensive” path to asylum. Most individuals who are found to
have a credible fear of these are almost immediately released to relatives or
community groups, or on their own recognizance.
However, some are
not released, and instead are detained while their asylum claims are pending
with the Immigration Judge.
If the individual who
expresses a fear of return is arriving from Canada at a U.S.-Canadian land
border port of entry, or is being removed from Canada and transiting through
the United States, the APSO will conduct a threshold screening interview to
determine whether he or she must seek protection in Canada instead of the
United States.
If the individual is eligible to seek
protection in the United
States, the APSO then will determine
whether he or she has a credible fear of persecution or torture.
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