What are the two ways you can file for Asylum?
April Perez • August 25, 2022
Asylum is an application that allows an individual to remain in the United States instead of being removed or having to return to their home country where he or she fears persecution or harm. An asylum application can be filed one of two ways.
Affirmative Asylum
An affirmative application for asylum can be filed by someone who is not in removal proceedings (immigration court). The person can file their application and evidence with the asylum office that corresponds to the area where they live. Once the person is scheduled for an interview the interview will be conducted at the asylum office with a USCIS officer. If the person has an attorney their attorney may also be present at the interview along with a translator if one is needed. The applicant will be placed under oath and the officer will ask questions about the application to confirm and update information in the application. The officer will also ask questions about the persecution that was suffered by the individual in their home country. A decision is usually given by mail, or the decision will need to be picked up in person by the applicant at the asylum office at a date and time designated by the officer. If the case is denied and the applicant is not in status, he or she will be referred to immigration court and have an opportunity to present their case before the immigration judge. If the person is still in status, they may continue in their current status.
Defensive Asylum
A defensive application for asylum is requested by an individual who is already in removal or immigration court proceedings. The person has either been referred to the court when they received a Notice to Appear, or they turned themselves in at the border and requested asylum. The application and evidence are submitted to the court and once the merits hearing or individual hearing (last hearing) is scheduled the applicant will have an opportunity to testify as to the persecution suffered in their home country. The judge will either give a decision at the end of the hearing or issue a written decision that will be received by mail at a later date. If the case is denied the applicant can appeal their case to the Board of Immigration Appeals (BIA) otherwise they will have to follow the instructions in the judge’s decision in regard to their removal.
If you think that you may qualify for asylum please feel free to contact our office.
This blog is not intended to be legal advice and nothing here should be construed as establishing an attorney client relationship. Please schedule a consultation with an immigration attorney before acting on any information read here.
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