Under U.S. law, people who flee their countries because they fear persecution can apply for asylum. If they are granted asylum, this gives them protection and the right to stay in the United States.

There are 3 ways of obtaining asylum in the United States:

• The affirmative process;

• An Asylum Merits Interview after a positive credible fear determination; or

• The defensive process.

Affirmative Asylum Processing With Uscis

To obtain asylum through the affirmative asylum process you must be physically present in the United States. You may apply for asylum regardless of how you arrived in the United States or your current immigration status. You must apply for asylum within 1 year of the date of your last arrival in the United States.

You may apply for affirmative asylum by submitting Form I-589, Application for Asylum and for Withholding of Removal, to USCIS.

You may live in the United States while your Form I-589 is pending before USCIS. If you are found ineligible, you can remain in the United States while your Form I-589 is pending with the immigration judge. Asylum applicants are not authorized to work unless you meet certain requirements.

Asylum Merits Interview With Uscis After A Positive Credible Fear Determination

If you are placed in expedited removal proceedings and indicate an intention to apply for asylum, express a fear of persecution or torture, or express a fear of return to your country, you will be referred to USCIS for a credible fear screening.

A USCIS asylum officer will conduct a credible fear screening interview to determine whether you have a credible fear of persecution or torture.

If an asylum officer finds that you have a credible fear of persecution or torture, USCIS may either:

• Retain and consider your application for asylum and also consider your eligibility for withholding of removal and protection under the Convention Against Torture (CAT) in a second interview. This is known as an Asylum Merits Interview. An asylum officer will decide whether you are eligible for asylum. If necessary, an asylum officer will also determine whether you demonstrated eligibility for withholding of removal or protection under CAT based on the record before USCIS; or

• Issue a Notice to Appear before an immigration judge for consideration of your asylum, withholding of removal, and CAT protection claims. When you file the Form I-589, Application for Asylum and for Withholding of Removal, with the immigration court, it places you in the “defensive” asylum process

Defensive Asylum Processing With Eoir

A defensive application for asylum occurs when you request asylum as a defense against removal from the United States. For asylum processing to be defensive, you must be in removal proceedings in immigration court with the Executive Office for Immigration Review (EOIR).

Individuals are generally placed into defensive asylum processing in one of two ways:

1. They are referred to an immigration judge by USCIS after they have been determined to be ineligible for asylum at the end of the affirmative asylum process, or

2. They are placed in removal proceedings because they:

• Were apprehended in the United States or at a U.S. port of entry without proper legal documents or in violation of their immigration status; or

• Were apprehended by U.S. Customs and Border Protection (CBP) trying to enter the United States without proper documentation, were placed in the expedited removal process, and were found to have a credible fear of persecution or torture by an asylum officer.

Immigration judges hear defensive asylum cases in adversarial (courtroom-like) proceedings, as necessary. The judge will hear arguments from both of the following parties:

• You (and your attorney, if represented)

• The U.S. government, which is represented by an attorney from U.S. Immigration and Customs Enforcement (ICE)

The immigration judge then decides whether you are eligible for asylum. If the immigration judge finds you eligible, they will grant asylum. If the immigration judge finds you ineligible for asylum, they will determine whether you are eligible for any other forms of relief from removal. If the immigration judge finds you ineligible for other forms of relief, they will order you to be removed from the United States. Either party can appeal the immigration judge’s decision.

Do you have questions about the Asylum in the United States? Then contact US Kananchuk Law Office through our website or by calling 1-224-520-8155