Individuals who are in the United States and are afraid to return to their home countries may qualify for asylum. Depending on whether the applicant is or isn’t in removal proceedings, he or she may apply for asylum either through the affirmative asylum process or the defensive asylum process. Under both processes, asylum seekers must indicate a “well-founded fear” of persecution in their home countries during a credible fear interview with immigration authorities. Otherwise, they are ordered for removal.
Affirmative asylum process – To obtain asylum through the affirmative asylum process individual must be physically present in the United States. Individuals may apply for asylum status 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 their last arrival in the United States, unless you can show:
- Changed circumstances that materially affect your eligibility for asylum or extraordinary circumstances relating to the delay in filing
- You filed within a reasonable amount of time given those circumstances.
They can also apply for asylum at ports of entry. In an affirmative asylum process, an USCIS officer decides whether the individual will be granted asylum in the U.S. Currently, USCIS processes asylum applications on a last in, first out basis. This means that recently filed applications are generally decided within a few months of filing. If USCIS denies an asylum application in the affirmative asylum process after the individual’s visa has expired, he or she is referred for removal but can utilize the defensive asylum process to renew his or her request for asylum.
Defensive asylum process – Individuals can seek asylum as a defense against removal after they are apprehended by U.S. Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP) agents in the U.S. or at one of the ports of entry without valid visa. A person in the defensive asylum process requests asylum in immigration court where an immigration judge decides whether or not the applicant will be granted asylum. Once the immigration judge has received the application, they will generally schedule the applicant for an individual hearing. During this hearing, the applicant can present evidence and testify in support of the application. They can also have other people testify. A government attorney will be present at the hearing and can also ask questions of the applicant and any other witnesses. After the hearing is complete, the immigration judge will issue his or her decision. If the applicant disagrees with that decision, they have the right to appeal it to the Board of Immigration Appeals. Individuals seeking asylum at ports of entry are placed in expedited removal proceedings by CBP and referred for a credible fear screening interview conducted by an asylum officer. The credible fear interview provides the applicant with the opportunity to explain how he or she has been persecuted or has a well-founded fear of persecution based on his or her race, religion, nationality, membership in a particular social group, or political opinion if returned to his or her country. Based on the interview, the officer then decides whether the applicant has a “significant possibility” of being eligible for asylum. If so, the officer refers such individual to immigration court in a defensive asylum application process. If not, the applicant is ordered removed and may seek review by an immigration judge in effort to appeal the negative decision.