Asylum is a humanitarian relief available to individuals physically present in the U.S. who cannot return to their country because of past persecution or a well-founded fear of future persecution. The reason must relate to one of five protected grounds: race, religion, nationality, political opinion, or membership in a particular social group.
Understanding the Two Asylum Paths
Asylum aims to protect individuals from persecution. However, the terms “affirmative” and “defensive” asylum can be difficult to understand, especially for a layperson. Therefore, a discerning understanding is crucial to determine the appropriate legal strategy i.e., ensuring an effective and timely submission without unnecessary delays.
Affirmative Asylum
Affirmative asylum is the process for individuals who are not in removal (deportation) proceedings. These applicants proactively apply for asylum by submitting Form I-589 (Application for Asylum and for Withholding of Removal) to the U.S. Citizenship and Immigration Services (USCIS).
Requirements
To qualify for asylum, an applicant must fulfill specific requirements, which include the following:
- Physical presence in the U.S. or at a Port of Entry, regardless of immigration status
- Demonstrate a well-founded fear of persecution in the home country due to one of the five protected grounds outlined in 8 U.S. Code § 1158
- Must file Form I-589 meticulously within one year of last arrival, unless an exception applies
- Must not be barred under 8 U.S.C. § 1158(b)(2) for reasons including serious crimes, persecuting others, or national security concerns
- No firm resettlement in another country before arriving in the U.S.
One-Year Filing Deadline and Exceptions
Generally, applicants must file Form I-589 within one year of their last in the U.S.; failure to do so may result in denial unless an exception applies. Exceptions include:
- Changed circumstances: Significant changes in the applicant’s country or personal situation that affect eligibility.
- Extraordinary circumstances: Serious illness, mental or physical disability, ineffective assistance of counsel, or a lawful status that delayed filing.
Proper documentation of these exceptions is vital to preserve eligibility.
Procedural Steps
The key procedural steps comprise the following:
- File Form I-589 with USCIS
- Receive a receipt notice confirming submission
- Attend the biometrics appointment at the Application Support Center (ASC)
- Await interview notice issued by USCIS
- Attend the interview with a USCIS asylum officer
- Provide supporting evidence, including affidavits or country condition reports
Asylum Interview & Outcome
A USCIS asylum officer conducts a non-adversarial interview to evaluate the claim. Also, review the applicant’s background, fear of return, and supporting evidence. Interviews are private and typically last one to three hours. Outcome includes one of the following:
- Approval: Asylum granted by USCIS.
- Denial: Case referred to Immigration Court if the applicant lacks lawful status.
No removal order is issued directly by USCIS in this stage.
Defensive Asylum
Defensive asylum is claimed as a defense against removal proceedings in Immigration Court before the Executive Office for Immigration Review (EOIR). It is a formal, adversarial proceeding in which a DHS attorney represents the government, and the court schedules hearings.
Eligibility
An individual may seek defensive asylum when placed in removal proceedings before an Immigration Judge (IJ). Common circumstances include:
- Referral by USCIS after denial of an affirmative asylum application
- Apprehension or detention at a port of entry or the border without valid entry documents
- Referral by CBP or ICE following a positive credible-fear interview
Procedural Steps
The key procedural steps comprise the following:
- NTA issued with detailing the reasons for removal
- Filing Form I-589 with the relevant Immigration Court
- Master Calendar Hearing: The initial hearing to confirm pleadings, update information, and receive scheduling for Merits Hearing
- Submission of Evidence: Submitting all supporting documents and witness statements before the merits hearing deadline
- Merits Hearing: Present the asylum claim before an IJ, which includes direct testimony, cross-examination, and closing arguments
Outcome
The IJ evaluates testimony, evidence, and credibility before issuing a decision, and may grant or deny an asylum application. Appeals can be filed with the Board of Immigration Appeals (BIA) within 30 days.
Post-Approval Stage
Once asylum is granted, the individual may:
- Request derivative asylum for a qualifying family abroad
- Apply for a Green Card after one year of continuous physical presence.
Required Documents & Evidence
Applicants should include the following:
- Completed Form I-589 and signed declaration of persecution history
- Passport or national ID, if available
- Country condition reports, news articles, and expert opinions supporting the claim
- Personal affidavits or witness statements
- Any proof of harm or threats; medical, police, or media records
Common Mistakes Applicants Make
Missing deadlines, incomplete evidence, inconsistent testimony, and a lack of legal representation are the most common reasons for denial. Applicants must stay consistent, provide credible evidence, attend all hearings, and seek professional legal help.
Role of Legal Representation
Immigration law is complicated. An immigration attorney significantly improves an applicant’s chances of success by ensuring that every document, piece of relevant evidence, and testimony is accurate and submitted on time. They guide applicants through the legal steps, help present credible evidence, and make the asylum process easier to understand. They protect the applicant’s rights and speak on their behalf against the government’s Attorney. Data shows that represented applicants are several times more likely to succeed than those without legal help.
Conclusion
Both affirmative and defensive asylum aim to protect individuals who cannot return to their home countries safely. With the correct information and support, asylum can provide a path to stability and security in the United States.
FAQs
Q1: What happens if I miss my asylum interview or court date?
A: You risk denial or a removal order.
Q2: Can I apply for work authorization while waiting?
A: Yes, after 150 days if your case is still pending.
Q3: Can my family join me after I get asylum?
A: Yes, you can file Form I-730 for your spouse and children under 21.
Q1: Can someone choose whether to apply affirmatively or defensively?
A: No. The path depends on whether the person is already in removal proceedings.
Q5: Can I travel abroad while asylum is pending?
A: Only with Advance Parole (Form I-131) but traveling without it abandons the application.
