- Eligibility: Any individual physically present in the U.S., regardless of how they arrived or their current immigration status, can apply for affirmative asylum. The application must be submitted within one year of the individual's last arrival in the U.S., although there are exceptions for extraordinary circumstances.
- Process:
- Filing: The applicant files Form I-589, Application for Asylum and for Withholding of Removal, with USCIS.
- Biometrics Appointment: After filing, the applicant will be scheduled for a biometrics appointment where fingerprints, photographs, and signatures are taken.
- Interview: The applicant will attend a non-adversarial interview with an asylum officer. During this interview, the applicant presents their case and provides evidence supporting their claim of persecution.
- Decision: USCIS will decide the case. If asylum is granted, the applicant and their immediate family members in the U.S. may be eligible for asylum status. If the application is denied and the applicant is not in lawful immigration status, USCIS will refer the case to an immigration judge for removal proceedings, where the applicant can pursue a defensive asylum claim.
- Eligibility: Individuals who are in removal proceedings can apply for defensive asylum. This typically includes those who were apprehended in the U.S. or at a port of entry without proper documentation or whose affirmative asylum applications were denied and referred to immigration court.
- Process:
- Initiation: Removal proceedings begin when the Department of Homeland Security (DHS) issues a Notice to Appear (NTA), detailing the charges against the individual.
- Filing: The individual can apply for asylum as a defense against removal by submitting Form I-589 during their immigration court proceedings.
- Hearing: The immigration judge conducts a hearing where the applicant presents their asylum claim. The process is adversarial, meaning a DHS attorney will oppose the application.
- Decision: The immigration judge will issue a decision. If asylum is granted, the applicant can stay in the U.S. with asylum status. If denied, the applicant may appeal the decision to the Board of Immigration Appeals (BIA) and, subsequently, to the federal courts if necessary.
- Initiation: Affirmative asylum is initiated by the applicant without the immediate threat of deportation, whereas defensive asylum is initiated in response to removal proceedings.
- Venue: Affirmative asylum applications are handled by USCIS, a non-adversarial agency, while defensive asylum applications are adjudicated in an adversarial immigration court setting.
- Process: The affirmative process involves a non-adversarial interview with an asylum officer, while the defensive process involves a court hearing before an immigration judge, often with legal representation from both sides.
- Timing: Affirmative asylum applications must generally be filed within one year of arriving in the U.S., while defensive asylum applications are filed as part of removal proceedings, which can occur at any time after entry.
