An individual may apply for asylum in the United States in two ways: affirmatively or defensively.
- Affirmative Asylum: A person who is not in removal proceedings may apply for asylum through the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) (DHS). If the USCIS asylum officer denies the application and the applicant does not have a legal immigration status, he or she is transferred to an immigration court for removal proceedings, where he or she can reapply the asylum request through the defense procedure and appear before an immigration judge.
- Defensive Asylum: A person in removal proceedings may file a defensive asylum claim with an immigration judge at the Department of Justice’s Executive Office for Immigration Review (EOIR). In other words, asylum is sought as a safeguard against deportation from the United States. Unlike the criminal justice system, the EOIR does not provide assigned counsel to immigrants in immigration court, even if they are unable to afford one.
Asylum seekers who arrive at a U.S. port of entry or enter the country without being inspected must usually petition for asylum through the defensive asylum process. Both methods necessitate the asylum seeker’s actual presence in the United States.
An asylum applicant, whether represented by counsel or not, bears the responsibility of establishing that he or she satisfies the criteria of a refugee. Throughout the affirmative and defense phases, asylum applicants frequently offer extensive evidence proving either past persecution or a “well-founded fear” of future persecution in their home country. However, the individual’s own evidence is frequently crucial in determining whether or not he or she is eligible for asylum.
Individuals are denied asylum due to a variety of causes. Individuals who do not petition for asylum within one year after entering the United States will be denied asylum, with a few exceptions. Applicants who are judged to be a threat to the United States are also denied refuge.