ASYLUM

“Affirmative” Asylum

In the affirmative asylum process, individuals who are physically present in the United States, regardless of how they arrived in the U.S. and regardless of their current immigration status, may apply for asylum. They do so by submitting an application to the Asylum Office with the USCIS. 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 interviewed by Asylum Officers. The Immigration and Nationality Act (INA) provides in Section 208(d)(5) that the initial interview asylum applications should take place within 45 days after the date the application is filed, and a decision should be made on the asylum application within 180 days after the date the application is filed, unless there are exceptional circumstances.

Affirmative asylum applicants are free to live in the U.S. pending the completion of their asylum processing with the USCIS and, if found ineligible by the USCIS, then with an Immigration Judge. Asylum applicants referred to an Immigration Judge for such processing are usually not detained.

U.S. “Defensive” Asylum Processing with Immigration Courts (EOIR)

Immigration Judges hear asylum applications only in the context of “defensive” asylum proceedings. Applicants request asylum as a defense against removal from the United States. Immigration Judges hear such cases in adversarial proceedings. 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:

1) they are referred to an IJ by Asylum Officers who did not grant asylum to them, or

2) they are placed in removal proceedings because they:

a) are undocumented or in violation of their status when apprehended in the U.S. or

b) 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 immigrants stopped by immigration officers 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. 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.

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 their asylum claims. Most individuals who are found to have a credible fear are released. However, some are not released, and instead are detained while their asylum claims are pending with the Immigration Judge.

Please read here our legal analysis on Belarus Religious Persecution cases.