Asylum
by: American Gateways
What is Asylum?
Asylum is a form of protection that allows individuals who are in the United States to remain here, provided that they meet the definition of a refugee and are not barred from either applying for or being granted asylum, and eventually to adjust their status to lawful permanent resident.
What is a Refugee?
The Immigration and Nationality Act defines "refugee" in Sec. 101(a)(42) as:
(A) any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, or
(B) in such circumstances as the President after appropriate consultation (as defined in section 207(e) of this Act) may specify, any person who is within the country of such person's nationality or, in the case of a person having no nationality, within the country in which such person is habitually residing, and who is persecuted or who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
The term "refugee" does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion. For purposes of determinations under this Act, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.
How can I receive asylum in the US?
The two principal ways of obtaining asylum in the United States are through the affirmative process and through the defensive process.
1) Affirmative Asylum Process
In the affirmative asylum process, individuals who are physically present in the United States, regardless of how they arrived to the Unites States and regardless of their current immigration status, may apply for asylum. They do so "affirmatively" by submitting an application to the BCIS. Asylum-seekers must apply for asylum within one year from the date of last arrival in the United States, unless they can show changed circumstances that materially affect their eligibility or extraordinary circumstances relating to the delay in filing, and that they filed within a reasonable amount of time given those circumstances. They file an asylum application (Form I-589) by sending it to a BCIS Service Center. The asylum seeker will be given an appointment with an asylum officer. These interviews are non-adversarial interviews and take place at one of the eight Asylum Offices throughout the U.S.
2) Defensive Asylum Process
"Defensive" asylum applications are presented to an Immigration Judge. In this context, asylum is requested as a defense against removal from the United States. Immigration Judges (IJs) with the Executive Office for Immigration Review (EOIR) hear such cases in adversarial proceedings. The IJ is the judge that hears the applicant's claim and also hears any concerns about the claim raised by the Government, which is represented by an attorney. The IJ then makes a determination of eligibility.
Asylum seekers are placed in defensive asylum processing either because they were referred to an IJ by an Asylum Officer who did not grant asylum or because they had been placed in removal proceedings either because are undocumented or in violation of their status when apprehended in the United States or they were caught trying to enter the U.S. without proper documentation and were found to have a credible fear of persecution or torture.
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