There is two ways of obtaining asylum in the United States they are through the Affirmative process and Defensive process. Below is a brief description of both.
Affirmative Processing with USCIS
To obtain asylum through the Affirmative process you must be physically present in the United States. Your application for asylum can be started regardless of how you arrived in the United States, or your current immigration status.
You must apply for asylum within one year of the date of your last arrival in the United States, unless.
- You Changed circumstances that materially affect your eligibility for asylum or extraordinary circumstances relating to the delay in filing; and
- You filed within a reasonable amount of time given those circumstances.
If your case is not approved and you do not have a legal immigration status, we will issue a, Notice to Appear (NTA). We will then submit your case to an immigration judge at the Executive Office for Immigration Review (EOIR). The immigration judge conducts a “de novo” hearing of the case. This means that the judge conducts a new hearing and issues a decision that is independent of the decision made by USCIS. In certain circumstances, if USCIS does not have jurisdiction over your case, the asylum office will issue a, Notice of Referral to an Immigration Judge, for an asylum-only hearing. See the section “Defensive Asylum Processing With EOIR” below if this situation applies to you.
If you were previously issued an NTA that was not filed and docketed with the EOIR immigration court, or your previously issued NTA was filed and docketed with EOIR either shortly before (within 21 days) or after you filed your application with USCIS, USCIS will refile your NTA (if necessary) and send your application to the immigration court for adjudication.
You may live in the United States while your application is pending before USCIS. If you are found ineligible, you can remain in the United States while your application is pending with the immigration judge. Asylum applicants are not authorized to work unless you meet certain requirements. Affirmative asylum applicants are rarely detained by U.S. Immigration and Customs Enforcement (ICE).
Defensive Processing with EOIR
A defensive application for asylum occurs when you request asylum as a defense against removal from the United States. For processing to be defensive, you must be in removal proceedings in immigration court with the Executive Office for Immigration Review (EOIR).
Individuals are generally placed into defensive asylum processing in one of two ways:
- They are referred to an immigration judge by USCIS after they have been determined to be ineligible for asylum at the end of the affirmative asylum process, or
- They are placed in removal proceedings because they:
- Were apprehended in the United States or at a U.S. port of entry without proper legal documents or in violation of their immigration status; or
- Were apprehended by U.S. Customs and Border Protection (CBP) trying to enter the United States without proper documentation, were placed in the expedited removal process, and were found to have a credible fear of persecution or torture by an officer.
Immigration judges hear defensive asylum cases in adversarial (courtroom-like) proceedings. The judge will hear arguments from both of the following parties:
- You (and your attorney, if represented)
- The U.S. government, which is represented by an attorney from U.S. Immigration and Customs Enforcement (ICE)
The immigration judge then decides whether you are eligible for asylum. If the immigration judge finds you eligible, they will grant asylum. If the immigration judge finds you ineligible for asylum, they will determine whether you are eligible for any other forms of relief from removal. If the immigration judge finds you ineligible for other forms of relief, they will order you to be removed from the United States. Either party can appeal the immigration judge’s decision.
Key Differences Between “Affirmative” and “Defensive” Process
| Affirmative | Defensive |
|---|---|
| Individual has not been placed in removal proceedings before an immigration judge. | Individual has been placed in removal proceedings before an immigration judge. |
| Individual affirmatively submits Applications to USCIS. | Individual: Is placed in removal proceedings by an asylum officer; Is placed in removal proceedings for immigration violations; or Tried to enter the United States without proper documents and was found to have a credible fear of persecution or torture. If the individual was referred by USCIS, the asylum application already filed will carry over to the immigration judge. If the individual did not yet submit an asylum application, they will submit it to the immigration judge. |
| Individual appears before a USCIS asylum officer for a non-adversarial interview | Individual appears before an immigration judge with the Executive Office for Immigration Review for an adversarial, court-like hearing. |
| Individual must provide a qualified interpreter for the asylum interview. | The immigration court provides a qualified interpreter for the asylum hearing and all other court proceedings. |