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Obtaining Asylum in the US: Difference Between Affirmative and Defensive Asylum Processing

Affirmative vs. Defensive Asylum

The asylum status enables several categories of people to seek protection in the United States. Usually, this possibility is extended to individuals who have been persecuted because of their ethnicity, political views, nationality, race or religion.

In the United States, there are two general opportunities for asylum qualification – affirmative asylum and defensive asylum. Affirmative asylum seekers are yet to be deported from the country. While in the case of defensive asylum application, these individuals will have to defend themselves from deportation in immigration court at the U.S. Executive Office of Immigration.

The type of asylum you apply for in the United States is dependent on timing. This means you don’t have the freedom to opt for one option or the other.

Affirmative Asylum Overview

Affirmative asylum processing involves your physical presence in the United States. Individuals are free to apply regardless of the manner in which they got to the country or their current immigration status.

There’s an application deadline for affirmative asylum seekers. You have to apply within one year of your latest U.S. arrival, unless you can prove extraordinary circumstances. To apply for affirmative asylum, you’ll have to submit Form I-589, Application for Asylum and for Withholding of Removal.

According to the United States Citizen and Immigration Services (USCIS), affirmative asylum seekers are rarely detained. While the application is pending, you have the freedom to live in the United States. If your application is found ineligible, you can still remain in the U.S. while the application is pending with an immigration judge.

Defensive Asylum Overview

In the case of defensive asylum, the application occurs whenever you request asylum to prevent removal from the United States. The removal processing will already need to be in effect in order for the application to switch from affirmative to defensive asylum.

Defensive asylum processing occurs in one of two ways. One of the ways to get to this kind of procedure is to be referred to a judge after affirmative asylum ineligibility has been established. Alternatively, the application is possible whenever people are placed in removal proceedings because they were either caught at a U.S. point of entry without the required documents or they were caught by the U.S. Customs and Border Protection without proper documents and were placed in the expedited removal process.

During the court proceedings, the judge will hear from the defensive asylum applicant and the attorney representing the US government. If the applicant is eligible for defensive asylum, the judge will rule in their favor. Both parties have the right to appeal the decision of the immigration judge. If the asylum petition is denied, you will have 30 days to appeal. If you do not, immediate deportation may follow.

Establishing Fear of Persecution

To apply for United States asylum, a resident of another country will have to establish their fear of persecution upon returning home. This goal can be accomplished in several ways. If you’re attempting to get US asylum, you may want to contact an experienced immigration attorney. Your lawyer will advise you about the best ways in which you could demonstrate the possible consequences of returning home.

People who have suffered persecution in the past should make that clear. Depending on the specific information it contains, a personal testimony could be compelling enough to have the asylum granted. Additional evidence like newspaper articles and media reports, photos, video clips, books and witness affidavits can also be utilized to paint a complete picture.

Keep in mind that in order to meet the asylum requirements in the United States, a person does not need to have fear of torture or imprisonment. Persecution is legally defined as the identification of harm or suffering inflicted by a government on a person that the said government is either unwilling or unable to control or overcome a specific trait of the individual (religion, political opinions, ethnicity, etc.).

Under both national laws and international treaties, the United States government has the obligation to face asylum seekers facing persecution in their own country. At the same time, however, the credibility of such claims will have to be confirmed first.

Difference Between Asylee and Refugee

There is a difference between asylum seekers (asylees) and refugees. The term refugee refers to a person who has no nationality outside their country of residence but is unwilling or incapable of returning home. The difference isn’t that big, but the procedures for applying for asylum and refugee status are different.

Those who wish to get refugee status will apply with an overseas USCIS office before entering the United States. Asylum seekers apply when they’re already in the country. Upon approval, both asylees and refugees have the right to remain in the U.S. indefinitely or at least until the conditions in their home country go back to normal.

Seeking Asylum in the United States

Are you or a family member seeking asylum in the United States? Sverdloff Law Group is here to help you throughout every step of the process. Asylum laws can be challenging. This is why it’s recommended to seek professional legal advice from experienced immigration attorneys. To find out if you or a loved one qualify for asylum in the U.S., please contact us today or give us a call at (312) 238-9090 to discuss your case.