Under U.S. law, people who flee their countries because they fear persecution can apply for asylum. If they are granted asylum, this gives them the right to stay in the United States. Asylum is a form of protection that allows an individual to remain in the US instead of being removed (deported). The two ways of obtaining asylum in the United States are through the affirmative process and defensive process.

Obtaining Asylum in the United States

Affirmative Asylum Processing with USCIS 
Every year people come to the United States seeking protection because they have suffered persecution or fear that they will suffer persecution due to:

  • Race
  • Religion
  • Nationality
  • Membership in a particular social group
  • Political opinion

If you are seeking asylum in the United States, you must apply for asylum through the affirmative asylum process. To obtain asylum you must be physically present in the U.S. regardless of how you arrived in the United States. You must apply within one year of the date of your last arrival in the US unless you can show:

  • Changed circumstances that materially affect your eligibility for asylum or extraordinary circumstances relating to the delay in filing; and
  • You filed within a reasonable amount of time given those circumstances.

If USCIS does not have jurisdiction over your case, the asylum office will issue a Form I-863, Notice of Referral to Immigration Judge, for an asylum-only hearing. This implies that the judge holds a fresh hearing and delivers a determination that is independent of the decision reached by USCIS. If this applies to you, please see the section “Defensive Asylum Processing With EOIR”.

You may remain in the United States while your Form I-589 is being processed by USCIS. If you are ruled ineligible, you may remain in the United States while your case is being heard by an immigration judge.  While you await a decision on your application from USCIS, the applicant may request a work permit so they can work permit in the US and obtain their social security and driver’s license.

Defensive asylum application

To be eligible for the defensive asylum procedure, you must be facing removal proceedings in immigration court with the Executive Office for Immigration Review.

Individuals are generally placed into defensive asylum processing in one of two ways:

  • They are referred to an immigration judge by USCIS after they have been determined to be ineligible for asylum at the end of the affirmative asylum process, or
  • They are placed in removal proceedings because they:
    • Were apprehended in the United States or at a U.S. port of entry without proper legal documents or in violation of their immigration status; or
    • Were apprehended by U.S. Customs and Border Protection (CBP) trying to enter the United States without proper documentation, were placed in the expedited removal process, and were found to have a credible fear of persecution or torture by an asylum officer.

The judge will hear arguments from both of the following parties:

      • You (and your attorney, if represented)
      • The U.S. government is represented by an attorney from U.S. Immigration and Customs Enforcement.

The immigration judge then decides whether you are eligible for asylum. If the immigration judge finds you eligible, they will grant asylum. If the immigration judge finds you ineligible for asylum, they will determine whether you are eligible for any other forms of relief from removal. If the immigration judge finds you ineligible for other forms of relief, they will order you to be removed from the United States. Either party can appeal the immigration judge’s decision.

  • You have been persecuted or have a well-founded fear of persecution if you return to your home country because of your race, religion, nationality, membership in a particular social group, or political opinion – visit for more information.

 A “significant possibility” that you can establish in a hearing before an Immigration Judge that you would be subject to torture if returned to your country.

Individuals Seeking Asylum

If you say you fear return, CBP detains you and provides you information about the credible fear process. After you are detained, you will be given:

  • An orientation to the credible fear process
  • A list of free or low-cost legal service providers
  • At least 48 hours after your arrival at the detention site before taking part in the interview
  • The opportunity to waive the waiting period

You may not be granted asylum or withholding of removal  if:

  • You have persecuted others on account of race, religion, nationality, membership in a particular social group, or political opinion
  • You have been convicted of a particularly serious crime
  • There are serious reasons for believing you committed a serious nonpolitical crime outside the United States
  • You have engaged in terrorist activity, are likely to engage in terrorist activity, have incited terrorist activity, or are a member or representative of a terrorist organization
  • You were firmly resettled
  • There are reasonable grounds to believe that you are a danger to the security of the United States

Xavier Law Firm recommends that you hire an immigration attorney who will represent you effectively through the ASYLUM process. An immigration attorney will not only help you with information or guide you through the entire process but will make sure that you meet all the necessary requirements so that you can successfully apply.

The information provided on this website does not constitute and is not intended to constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only.



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