An individual who is seeking asylum is different from a refugee in that they are already present in the country in which they are seeking asylum. Just about anyone who watches the news or uses social media is likely familiar with the thousands of Central American migrants at the U.S. southern border. These men, women, and children have fled their home countries in search of a better, safer life. Other asylum seekers entered illegally and are living in the U.S. as undocumented immigrants. Still others entered the country legally, but exceeded their allowed duration of stay.
Regardless of how they got here, asylum seekers have at least one thing in common—they are requesting protection from persecution in their home countries, and they must navigate a complex process, and lots of paperwork, to do so. If you or a loved one are seeking asylum, contact an immigration attorney or seek legal aid from an asylum resource center once you have arrived.
How to obtain asylum
There are two methods of obtaining asylum in the United States: defensive process and affirmative process.
- Affirmative process
In the affirmative process, an immigrant may apply for affirmative asylum if he is physically present in the U.S. and applies within one year of his arrival. The one-year requirement may be waived if the individual’s circumstances changed and they filed within a reasonable period of time, based on those circumstances. If an application for affirmative asylum is denied, the immigrant’s case will be forwarded to an immigration judge at the Executive Office for Immigration Review (EOIR). The judge will then conduct a new hearing for defensive asylum.
- Defensive process
If a foreign national is facing deportation (removal) proceedings, she may file an application for defensive asylum in defense against removal. Once it is determined that the individual is ineligible for asylum through the process of affirmative asylum, she is referred to an immigration judge who will hear the case for defensive asylum. In one example, removal proceedings may have begun because the individual was apprehended without proper documentation at a U.S. port of entry, but was later found to have had a credible fear of torture or persecution by an asylum officer.
In the defensive process, the immigration judge will decide if asylum should be granted. If the immigrant is determined to be ineligible, the judge will consider other forms of protection against removal, such as adjustment of permanent resident status, waivers of inadmissibility, and cancellation of removal.
If you are deemed ineligible for other forms of protection, your immigration attorney may still be able to help by requesting to reopen your asylum case. To have such a request granted, you will have to show that you have new gathered evidence. This will delay removal proceedings, however, the judge will not allow you to continue reopening your case indefinitely.
If you are unsuccessful with the reopening of your case, you have 30 days within which to submit a notice of appeal. The appeal should include a detailed list of the reasons for your appeal, along with a legal brief citing immigration laws that support your case.
If you are facing removal proceedings, it is crucial to consult with a highly skilled immigration attorney immediately. According to Garry L. Davis, founder and managing partner with Davis & Associates in Dallas Texas, attorneys can help with asylum cases in several ways. “First, we can help assess chances for success with a specific claim so the person goes into the process with reasonable expectations,” Davis says. “We can also help structure the application and evidence presented in a way that is truthful but emphasizes the points that USCIS or the Immigration Judge will focus on when reviewing the presentation. In addition, we can prepare an applicant for an interview or hearing by sharing what to focus on in the meeting, what kinds of questions the person may be asked, and what we're trying to accomplish in the meeting. Finally, when the government makes a decision, we can help the person know next steps regardless of the outcome, and to understand what went wrong in the event the case was denied.”
Time is of the essence; gaining re-entry to the United States becomes much more difficult once you’ve been deported.