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
|Asylum-seeker has not been placed in removal proceedings
|Asylum-seeker has been placed in removal proceedings in Immigration Court
|Asylum-seeker affirmatively submits his or her asylum application to a USCIS Service Center
|Asylum-seeker appears before a USCIS Asylum Officer
|Asylum-seeker appears before an Immigration Judge with the Executive Office for Immigration Review
|Adversarial court hearing
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 (starting from the beginning or anew) 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.
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.
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.