Affirmative vs. Defensive Asylum

An asylum claim is available as an affirmative, or defensive, tool for those seeking safety in the United States.

Affirmative

A foreigner who is not already in immigration proceedings may file for affirmative asylum while inside the U.S.

Defensive

A foreigner may file for defensive political asylum:

1. At a port of entry (airport or border checkpoint) with a visa or entry document in hand;
2. At a port of entry without a visa, but there are often changing rules about how this might be possible; or
3. Inside the U.S. if detained by an immigration officer and placed into immigration removal proceedings. 

Foreigners who are outside the U.S. and in fear of persecution may file for refugee status through the United Nations. You may not file for political asylum if you are outside the U.S. (unless at a U.S. border check).

Substantial Claim

The asylee must provide documentation to confirm their identity. This can be difficult for many people who are running from their home country. Furthermore, the United States government requires proof of persecution due to religion, race, nationality, social group, and/or political opinion. Otherwise, they consider the request frivolous. The submission of a frivolous application can lead to deportation. There are serious immigration consequences for filing a claim that is not accurate.

It’s important to work with an experienced attorney. Any person or attorney who helps you file an asylum claim that is not accurate is eventually caught and investigated. 

Be careful to check the license and credentials of the person who assists you.

Timing

An asylum claim must be filed within one year after the foreigner’s most recent entry to the US.  A late filing is possible based on changed circumstances resulting in a problem now that did not previously exist.

The Immigration and Nationality Act (INA) requires that the USCIS schedule the first interview within 45 days after the asylum application is filed. The USCIS is supposed to make a decision within 180 days after the application date. However, due to backlog, it can take between 6 months and several years.

A foreign applicant may apply for a work permit once 150 days have passed after filing for asylum. That time is extended for any errors made in the applicant.

Allan

Additional Documents

You must submit immigration form I-589 as part of an asylum claim. You may provide evidence of your past persecution, but must show a fear of future persecution. Supporting evidence includes political affiliation documents, police reports, and statements corroborating your story. It is always best to consult with an attorney before you submit your application. It is difficult to know what evidence should be submitted or not. Some evidence may be inconsistent with your claim and will hurt your chances of approval. 

Consequences of filing for Asylum

The idea of possibly being placed in removal proceedings–immigration court–is terrifying. Many applicants feel more comfortable filing for affirmative asylum while still in lawful visa status in the U.S.

The asylum-seeker’s future U.S. immigration options will be affected in nearly all cases by filing an asylum claim. Applicants for many non-immigrant visas (most notably tourist and student visas) must show that they do not intend to stay in the U.S. forever. Thus, an asylum applicant will likely find it impossible to obtain another visa to the United States if the applicant loses the asylum case and is returned to his country of origin.