Can I Apply for Asylum If I'm Not Legally in the U.S.?
UPDATED: March 31, 2014
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You can still apply for asylum if you are in the United States illegally. Immigration law provides for two general types of asylum processing: defensive asylum processing and affirmative asylum processing.
Asylum and Defensive Processing
Defensive processing can be invoked when you are subject to removal proceedings because you are in the U.S. illegally. In essence, you are defending an involuntary removal with the explanation of why you cannot return to your native country. The court that hears your asylum application will provide you with a qualified interpreter. The court will listen to any evidence or information that you or your immigration attorney would like to present in connection with your asylum application. An attorney for the U.S. government will present evidence or arguments opposing your application. The immigration judge will then decide whether to approve your application. If your asylum application is denied, then the judge will order your removal.
Asylum and Affirmative Processing
The second type of asylum is called affirmative processing. This type of asylum is for persons who are already in the United States or port of entry - even those that are illegally in the United States. You must file your asylum application within one year of your last entry. Immigration laws do provide for some limited exceptions to this deadline. If you are in the U.S. illegally and wish to seek asylum, you should consult with an immigration attorney to see which options and exceptions apply to your situation. Usually, you will not be detained or in custody while your asylum application is pending. Affirmative processing is usually described as non-adversarial. However, if your application is denied and you do not qualify for legal status through another program, you could become subject to removal proceedings, which are adversarial. If you are placed in removal proceedings, your affirmative asylum application will follow you to the removal proceedings. The affirmative application can then be converted to a defensive asylum application. Essentially, you will get two opportunities to have your application heard.
If your application for asylum is denied, you may also be able to appeal the court’s decision or request that your case be reopened because of new information or a change in your circumstances. You should consult with an attorney who specializes in immigration law to see which process is best to seek a review in your situation.