INTRODUCTION

Asylum is a form of protection granted to individuals in the United States who have fled their home countries due to persecution or a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion. The U.S. asylum system provides two primary avenues for seeking asylum: affirmative asylum and defensive asylum. A comprehensive understanding of these processes is essential for determining the appropriate legal path.

AFFIRMATIVE ASYLUM

Eligibility Criteria:

There are certain requirements for seeking Asylum in the United States. Those are as follows:

1. The applicant must demonstrate a genuine fear of persecution based on race, religion, nationality, political opinion, or membership in a particular social group.
2. The applicant must be physically present in the United States, regardless of whether they entered legally or without inspection.
3. The applicant must not have been permanently resettled in another country before arriving in the United States.
4. The applicant must not be disqualified from asylum due to any statutory bars listed in 8 U.S.C. § 1158(b)(2).
5. The applicant must file a complete and accurate application within one year of their arrival in the United States.

Procedural Steps:

The affirmative asylum process involves a proactive application through the U.S. Citizenship and Immigration Services (USCIS). The key procedural steps are as follows:

• Filing the Application: 

Applicants must file Form I-589, Application for Asylum and for Withholding of Removal, with USCIS. This form must be submitted within one year of the applicant’s last arrival in the United States, subject to certain exceptions. Such as,

1. There has been a significant change in circumstances affecting the noncitizen’s eligibility for asylum.
2. There are exceptional circumstances that explain the delay in filing for affirmative asylum.
3. Considering these circumstances, the application was submitted within a reasonable timeframe.

• Biometric Services Appointment: 

Following the submission of the application, applicants will be scheduled for a biometric services appointment to collect fingerprints, photographs, and signatures.

• Asylum Interview: 

Applicants will attend an interview with a USCIS asylum officer. During this interview, applicants must present their case, articulate the reasons for seeking asylum, and provide supporting evidence. Accuracy and thoroughness in responses are imperative.

• Adjudication: 

The asylum officer will render a decision on the application. If approved, the applicant will be granted asylum status, permitting them to reside and work in the United States and eventually apply for permanent residency. If denied and the applicant lacks lawful status, the case will be referred to an immigration court for removal proceedings, where the applicant may then apply for defensive asylum.

DEFENSIVE ASYLUM

Eligibility Criteria: 

Defensive asylum process is utilized as a defense against deportation from the United States. The process may occur one of two ways:

1. It can begin if an individual is referred to an immigration judge after being found ineligible for affirmative asylum.
2. This process can start if individuals are placed in removal proceedings, either because they were caught at a U.S. entry point without the necessary documents or apprehended by U.S. Customs and Border Protection and placed in expedited removal.

Procedural Steps: 

The defensive asylum process involves presenting the case in immigration court. The key procedural steps are as follows:

• Notice to Appear:

The process commences with the issuance of a Notice to Appear (NTA) in immigration court, detailing the charges and grounds for removal.

• Master Calendar Hearing:

The initial court appearance is a Master Calendar Hearing, where the applicant will plead their case and indicate their intention to apply for asylum. Legal representation is strongly advised.

• Filing the Application:

Applicants must submit Form I-589, Application for Asylum and for Withholding of Removal, to the immigration court. This form is identical to the one used in the affirmative asylum process.

• Individual Hearing:

The applicant will present their asylum case before an immigration judge during an Individual Hearing. This hearing resembles a trial, where evidence can be presented, witnesses called, and the applicant may testify. The government will also present its case.

• Adjudication:

The immigration judge will issue a decision on the asylum application. If granted, the applicant will receive asylum status, allowing them to remain in the United States. If denied, the applicant may be ordered removed, with the possibility of appealing the decision.

DETERMINING THE APPROPRIATE PATH

The choice between affirmative and defensive asylum depends on the applicant’s current immigration status and whether they are already in removal proceedings. Key considerations include:

AFFIRMATIVE ASYLUM

• Suitable for individuals not in removal proceedings who seek to proactively apply for asylum.
• Involves a non-adversarial interview with a USCIS asylum officer.
• If denied, applicants may still apply for defensive asylum in immigration court.

DEFENSIVE ASYLUM

• Necessary for individuals facing deportation who need to defend against removal.
• Involves an adversarial hearing before an immigration judge.
• Legal representation is crucial to navigate the complexities of immigration court proceedings.

LEGAL CONSIDERATIONS AND CHALLENGES

Both affirmative and defensive asylum processes present unique legal challenges and considerations. For affirmative asylum applicants, the primary challenge is meeting the one-year filing deadline. Exceptions to this deadline are limited and require substantial evidence to prove extraordinary circumstances or changes in conditions that justify the delay.

For defensive asylum applicants, the adversarial nature of immigration court proceedings can be daunting. The burden of proof lies with the applicant to demonstrate eligibility for asylum, and the presence of government attorneys opposing the application adds to the complexity. Legal representation is highly recommended to ensure that the applicant’s rights are protected and that the case is presented effectively.

THE ROLE OF LEGAL REPRESENTATION

Legal representation plays a critical role in both affirmative and defensive asylum processes. An experienced immigration attorney can provide invaluable assistance in preparing the application, gathering supporting evidence, and representing the applicant during interviews and hearings. Attorneys can also help navigate the complexities of immigration law, ensuring that the applicant’s case is presented in the best possible light.

CONCLUSION

Both affirmative and defensive asylum processes provide legal avenues for individuals seeking protection from persecution. A thorough understanding of these processes is vital for making an informed decision regarding the appropriate legal path. Consulting with an experienced immigration attorney can offer valuable guidance and support, enhancing the likelihood of a successful asylum application and the opportunity to build a new life in the United States.

By choosing the appropriate path and preparing thoroughly, applicants can increase their chances of obtaining asylum and securing a safe and stable future. Whether through the proactive approach of affirmative asylum or the defensive strategy in immigration court, the goal remains the same: to find refuge and protection in the United States.