There are two ways of obtaining asylum in the United States – either through the affirmative process, or the defensive process.
Affirmative Asylum Processing With USCIS
To obtain asylum through the affirmative asylum process you must be physically present in the United States. You may apply for asylum status regardless of how you arrived in the United States or your current immigration status.
You must apply for asylum within one year of the date of your last arrival in the United States, unless you can show:
You may apply for affirmative asylum by submitting Form I-589, Application for Asylum and for Withholding of Removal, to USCIS.
If your case is not approved and you do not have a legal immigration status, we will issue a Form I-862, Notice to Appear, and forward (or refer) your case to an Immigration Judge at the Executive Office for Immigration Review (EOIR). The Immigration Judge conducts a ‘de novo’ hearing of the case. This means that the judge conducts a new hearing and issues a decision that is independent of the decision made by USCIS. If we do not have jurisdiction over your case, the Asylum Office will issue an I-863, Notice of Referral to Immigration Judge, for an asylum-only hearing. See ‘Defensive Asylum Processing With EOIR’ below if this situation applies to you.
Affirmative asylum applicants are rarely detained by U.S. Immigration and Customs Enforcement (ICE). You may live in the United States while your application is pending before USCIS. If you are found ineligible, you can remain in the United States while your application is pending with the Immigration Judge. Most asylum applicants are not authorized to work.
Defensive Asylum Processing with EOIR
A defensive application for asylum occurs when you request asylum as a defense against removal from the U.S. For asylum processing to be defensive, you must be in removal proceedings in immigration court with the Executive Office for Immigration Review (EOIR).
Individuals are generally placed into defensive asylum processing in one of two ways:·
The Immigration Judge then decides whether the individual is eligible for asylum. If found eligible, the Immigration Judge will order asylum to be granted. If found ineligible for asylum, the Immigration Judge will determine whether the individual is eligible for any other forms of relief from removal. If found ineligible for other forms of relief, the Immigration Judge will order the individual to be removed from the United States. The Immigration Judge’s decision can be appealed by either party.
Key Differences Between “Affirmative” and “Defensive” Asylum Process
If you entered a plea and were sentenced to any of the following offenses, even if the court withheld adjudication, you are not eligible to have your Florida record sealed:
Additionally, the following enumerated offenses are not eligible to be sealed after a plea is entered:
However, if your case was dismissed prior to trial, you may still be eligible to have your record expunged even if the offense is on this list.
The government may not compel you to become a witness against yourself in its effort to convict you. This prohibition is limited to testimonial evidence. They can:
However, they can never force you to speak.
This is not always an easy right to assert. Unless you have a military or CIA career, it is neither natural nor easy to resist the exhortations of an agent of the state wearing a badge and bearing a gun, especially when they are being nice. This is not the guy at Walmart changing your oil. There is always a subtly coercive and intimidating environment that accompanies any interaction with law enforcement.
"But I have nothing to hide!”
Really? How do you know?
For example, say you are walking around Target and in a pure slip-of-mind you put a stick of deodorant in your pocket. You had no intention whatsoever to steal it – you just forgot you left it there. How would you trust a police officer, called in by Target Security, to not find “intent” where you know in your heart of hearts you had none? You don’t want it to become a question for the Jury or a Judge because at that point you are charged or, as they say, south of the V.
“I want to cooperate”
Cooperate with a lawyer representing you, not a police officer who is interviewing you. Their interests are not your interests. You are helping them, not you, and that is a mode of analysis that will never fail. The most critical stage of any criminal prosecution is the beginning. By agreeing to openly speak to an agent of the state, you considerably increase the likelihood of the state convicting you.
The most disingenuous words you will ever hear from law enforcement is "you can help yourself here" ("Why Grandma what big teeth you have!" "All the more to eat you with my dear!").
Invoking your right to remain silent cannot be used against you, so keep your mouth shut for your own sake!
Joseph T. Hobson is a Criminal Defense attorney specializing in DUI charges in Clearwater, Florida.