Unfortunately, the news as of late has been heavy with the plight of migrants traveling north from Central America. Traveling for months, this group is making their collective way to the United States of America, hoping to find asylum. Asylum can be a confusing term, and even more confusing process, and not necessarily just for people seeking it! Many people at the moment seem to be confused on what exactly it means or how it works. This time on the Apfel & Associates blog, we wanted to give a basic rundown of the legal term, how it works, and more.

What Asylum Is

When refugees flee their home countries and come under the protection of the United States for one of the following reasons, they are seeking asylum. If in their home country they fear or have suffered persecution already due to their race, religion, nationality, membership in a social group, or political opinion.

Asylum seekers must be able to prove those circumstances and fill out a Form I-589 (Application for Asylum and for Withholding of Removal) and submit it to the United States Citizenship and Immigration Services department within a year of their arrival to the United States. There is no fee in applying for asylum.

There are affirmative and defensive processes to obtain asylum that work thusly.

Affirmative Asylum

Obtaining asylum through the affirmative process, you must first already be present physically in the United States. Regardless of how you arrived here or your current immigration status, you can apply for asylum.

You must apply within that year previously specified unless you can prove the following circumstances. First, that circumstances have changed that materially affected your eligibility or extraordinary circumstances are in effect. Second, given the previous circumstances, you filed your application within a reasonable amount of time.

Having applied for affirmative asylum, applicants are rarely detained by the U.S. Immigration and Customs Enforcement and you may live the US while the application is going through the USCIS. Should you be found ineligible to be granted asylum, you can still remain in the U.S. while it moves on to the next stage, being reviewed and handled by an Immigration Judge. So, while you are able to stay while the process is ongoing, most applicants are not authorized to work, so bear that in mind when navigating the process.

Defensive Asylum

Where affirmative asylum is seeking the protection of the U.S., defensive asylum is when you are actively requesting asylum so as to stop being removed from the U.S. For it to be defensive asylum, you must already be in proceedings with the Executive Office for Immigration Review (the EOIR) in immigration court that will lead to your removal.

There are, generally speaking, two ways an individual will end up going through defensive asylum. If the individual was referred to an Immigration Judge after they were determined to be ineligible for asylum in the affirmative process, is the first. The second is if they were apprehended in the U.S. or a port of entry without the correct legal documents.

Should you be involved with an Immigration Judge for a defensive asylum case, the proceedings will go a lot like the public thinks most court cases go. There is an attorney representing the U.S. Government and the individual in question, as well as their attorney if available, will argue the case before the judge. This will determine whether or not the individual is eligible for asylum.

If you believe you meet the criteria to apply for asylum, don’t wait to begin filling out your application immediately! When it comes to filling out the I-589 application, you can visit the U.S. Citizenship and Immigration Services website for specific help on how to file it.

The process is difficult but for people who are fleeing persecution, there really is no choice at all. Applying for asylum and being one of the selected few can mean the difference between starting a new life in the United States. Should you need that, and your application is initially passed on, you could use an experienced immigration and asylum attorney.

The information contained in this blog is provided for informational purposes only, and should not be construed as legal advice on any subject matter. No recipients of content from this answer, clients or otherwise, should act or refrain from acting on the basis of any content included in the answer without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a licensed attorney. Provision of information on this website does not create an attorney-client relationship between you and Apfel and Associates, P.C. nor is it intended to do so.