People who come to the United States because they have suffered persecution on the basis of race, religion, nationality or political affiliation may be eligible for asylum.
There are two types of asylum processes, affirmative and defensive. Affirmative asylum applicants must be physically present in the United States, but it does not matter how they arrived or what their current immigration status is.
Applications for affirmative asylum must generally be completed within one year of the person’s arrival in the United States, unless the applicant can show there were changed circumstances that caused a delay in filing or affected the applicant’s eligibility.
Defensive asylum applies when a person requests asylum as a defense against removal from the United States. This means that the person is already in removal proceedings because he or she was determined to be ineligible for asylum. This may be because they were stopped without proper legal documents or in violation of their immigration status.
Defensive asylum cases are held in front of a judge. The judge will hear arguments from the government and from the applicant’s attorney. The judge will then decide if the person is eligible for asylum.
If the applicant is eligible, the judge will grant him or her asylum. If the judge finds that the applicant is ineligible, he or she may determine if the person qualifies for other types of relief before removal. If the person is not eligible for this relief, the judge will order that he or she is removed from the United States.
The asylum process can be complex, but an experienced attorney can provide guidance to applicants.