Asylum Eligibility & Processing Procedures

The two types of asylum applications are affirmative and defensive. The purpose of both applications is to seek relief from removal or deportation from the United States. Both types of asylum applicants must show they have a credible fear of returning to their country of origin due to past persecution based on one of five protected grounds including race, religion, national origin, political opinion or membership in a particular social group.

Differences between Affirmative and Defensive Asylum

The distinction between affirmative and defensive asylum comes from having to defend oneself in immigration court. Affirmative asylum seekers have not yet begun the deportation process in court. Rather, they present their cases affirmatively in a less adversarial, office-like setting, to officers at the United States Citizenship and Immigration Services (USCIS). Those who file defensive asylums have already been placed before the Executive Office for Immigration Review (EOIR) and must therefore prove their case in a trial-like setting to an immigration judge. The USCIS is an agency in the Department of Homeland Security and the EOIR is part of the Department of Justice.

Determining Asylum Eligibility and Filing Requirements

A person is eligible for affirmative asylum if he or she has not yet been placed in removal proceedings. The applicant must apply for affirmative asylum within one year of arriving in the United States. Like defensive asylums, affirmative asylums are filed on Form I-589, except with USCIS at the service center with jurisdiction over the applicant’s place of residence.

Asylum Processing Procedures

Once the service center receives a completed application packet, it will send the asylum-seeker a receipt notice. It is important to give the service center your correct address and notify them if you move. After the receipt notice, applicants are sent a biometrics notice instructing them to have their fingerprints taken at the nearest Application Support Center. From these fingerprints, the FBI will conduct a background check, which must be completed before the interview. Once the applicant gives prints and passes a background investigation, he or she will be sent an interview notice giving the time and place of the asylum interview.

At the interview, an asylum officer will review and question the applicant to make sure he or she has a “credible fear” of returning to the country of origin due to past persecution. The applicant could be granted asylum here. If the officer denies the case, the applicant is referred to the immigration court to have his or her case heard by an immigration judge.

Seeking Asylum and Immigration Court

Aliens or respondents who have been referred to immigration court use asylums defensively to protect themselves in proceedings where they seek relief from removal before a judge. Removal proceedings begin with the issuance of a notice to appear (NTA) stating the factual allegations and charge(s) leveled against the alien by the Department of Homeland Security. Once the alien receives the NTA, he or she is assigned to an immigration judge. The alien will receive a hearing notice with the date and time of the first “master” hearing before the judge.

The hearing notice lists the courthouse, floor, and room number in which to appear. The immigration judge then conducts a series of master or status hearings during which the respondent will be given an opportunity to file and supplement his or her application for asylum. This application should include documents proving why the alien has a well-founded fear of returning to his or her country of origin. Such evidence may include state department reports showing human rights abuses, affidavits, and other records showing past persecution.

Final Steps in Asylum/Immigration Hearings

After all the initial evidence is submitted, the asylum seeker must testify to the merits of his or her application and be cross-examined by a trial attorney from the Department of Homeland Security. Upon hearing all the evidence presented by both sides, the immigration judge can grant or deny the application. The respondent has the right to reserve appeal to a higher court if asylum is denied.

Getting Legal Help

Because the asylum-seeking process is somewhat complicated and adversarial in nature, it is best to be represented by an immigration attorney during removal proceedings.