The
United States asylum program.
There are thousands of people coming to the United States in need
of protection because they have been persecuted or they fear they
will be persecuted because of their race, nationality, religion, membership
in a particular social group, or their political opinions. Those who
are found to be eligible for asylum are permitted to stay in the United
States.
The United States asylum program provides protection to qualified
refugees who are already in the United
States or are seeking entry into the United States. Asylum seekers
may apply for asylum in the United States regardless of their countries
of origin. There are no quotas on the number of individuals who may
be granted asylum each year.
The two main ways of obtaining asylum in the US are through the affirmative
process the defensive process. The crucial difference between affirmative
and defensive asylum process is that an affirmative asylum seeker
has not been placed in removal proceedings, and a defensive asylum
seeker has been placed in removal proceedings in Immigration Court.
Affirmative asylum processing with USCIS.
In the affirmative asylum process, individuals who are physically
present in the United States, regardless of how they got here and
regardless of their current immigration status, may apply for asylum.
They do so by submitting an application to 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 which materially affect their eligibility or extraordinary
circumstances related to the delay in filing, and that they filed
an application to USCIS 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 seen by Asylum Officers.
Affirmative asylum applicants are almost never detained. They are
free to live in the U.S. pending the completion of their asylum processing
with USCIS. Usually, an affirmative asylum applicant is interviewed
by USCIS within 43 days of application and, if not approved, is referred
by USCIS to an Immigration Judge at the Executive Office for Immigration
Review EOIR for further consideration. Asylum applicants referred
to an Immigration Judge for such processing are also not detained.
The process is usually completed within 6 months of the application,
including processing by the Immigration Judge if USCIS could not approve
the application and referred it to the judge. If USCIS can approve
the application, the decision is usually issued within 60 days from
the application. During this time, most asylum applicants
are not authorized to work.
Defensive asylum processing.
Immigration Judges with the Executive Office for Immigration Review
EOIR hear asylum applications only in the context of defensive asylum
proceedings. That means, applicants request asylum as a defense against
removal from the United States. Immigration Judges hear such cases
in adversarial, court room like, proceedings. A judge hears the applicant’s
claim and also hears any concerns about the validity of the claim
raised by the Government, which is represented by an attorney. The
judge then makes a determination of eligibility. If the applicant
is found ineligible for asylum, the the judge determines whether the
applicant is eligible for any other forms of relief from removal and,
if not, will order the individual to be removed from the United States.
Aliens are placed into defensive asylum processing in ways: they are
referred to an immigration judge by Asylum Officers who did not grant
asylum to them, or they are placed in removal proceedings because
they are undocumented or they were in violation of their status when
apprehended in the U.S.
Individuals arriving at an immigration port of entry without proper
documentation.
Some of the individuals arriving at an immigration POE without proper
documentation are genuine asylum seekers fleeing persecution in their
home country. Because of the circumstances of their flight from their
homes and departure from their countries, they may arrive in the U.S.
with no documents or with fraudulent documents obtained as the only
way out of their country. Any person subject to expedited removal
who raises a claim for asylum, or expresses fear of removal is given
the opportunity to explain his or her fears to an Asylum Officer.
Because some refugees may be hesitant to come forward with a request
for protection at the time of arrival, immigration policy and procedures
require INS inspectors to ask each individual who may be subject to
expedited removal the series of protection questions to identify anyone
who is afraid of return to their home country.
Also see the United
States refugee program.
