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How to Obtain Asylum in the United States

3/24/2013

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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:

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

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:· 

  1. 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 
  2. They are placed in removal proceedings because they:
    1. 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
    2. Were caught 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. 
Immigration Judges hear defensive asylum cases in adversarial (courtroom-like) proceedings. The judge will hear arguments from both of the following parties: 

  • The individual (and his or her attorney, if represented)· 
  • The U.S. Government, which is represented by an attorney from Immigration and Customs Enforcement (ICE)



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

Affirmative

  • Individual has not been placed in removal proceedings before an Immigration Judge
  • Individual affirmatively submits Form I-589 to USCIS
  • Individual appears before a USCIS Asylum Officer for a non-adversarial interview
  • Individual must provide a qualified interpreter for the asylum interview



Defensive


  • Individual has been placed in removal proceedings before an Immigration Judge
  • Individual:
    • Is placed in removal proceedings by an Asylum Officer;
    • Is placed in removal proceedings for immigration violations; or
    • Tried to enter the United States without proper documents and was found to have a credible fear of persecution or torture
  • If the individual was referred by USCIS, the asylum application already filed will carry over to the immigration judge.  If the individual did not yet submit an asylum application he or she will submit it to the Immigration Judge.
  • Individual appears before an Immigration Judge with the Executive Office for Immigration Review for an adversarial, court-like hearing
  • The Immigration Court provides a qualified interpreter for the asylum hearing and all other court proceedings.
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List of Disqualifying Offenses for Sealing a Criminal Arrest Record

3/24/2013

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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:

  • Sexual misconduct with a developmentally disabled or mentally ill person
  • Luring or enticing a child
  • Sexual Battery
  • Procuring s person under age 18 for prostitution
  • Lewd or lascivious act committed on or in the presence of child under 16
  • Voyeurism
  • Scheme to Defraud
  • Lewd or Lascivious act committed on or in presence of elderly or disabled person
  • Sexual performance by a child
  • Offenses by public employees or officials
  • Delivery of obscene material to a minor
  • Computer pornography
  • Selling or buying of minors for purposes of pornography
  • Trafficking in a controlled substance; including trafficking in cannabis
  • Sexual misconduct with mentally deficient of mentally ill


Additionally, the following enumerated offenses are not eligible to be sealed after a plea is entered:
    • Any act of domestic violence
    • Aggravated assault or battery
    • Stalking or aggravated stalking
    • Illegal use of explosives
    • Child abuse or aggravated child abuse
    • Abuse of an elderly or disabled adult (aggravated)
    • Aircraft piracy
    • Kidnapping
    • Homicide
    • Manslaughter
    • Robbery
    • Carjacking
    • Lewd, lascivious assault in the presence of a child under 16 years
    • Sexual activity with a minor over 12 or older but less than 18 by person in familial or custodial authority
    • Burglary of a dwelling
    • Home invasion robbery
    • Act of terrorism
    • Manufacturing any substance in violation of Chapter 893
    • Attempting or conspiring to commit any above crimes


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.
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The Right to Remain Silent

3/18/2013

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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:

  • Clip hair or nail samples
  • Make you give a handwriting or voice sample 
  • Extract breath or blood samples from you

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!

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    Author Bio

    Joseph T. Hobson is a Criminal Defense attorney specializing in DUI charges in Clearwater, Florida.

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  • Home
  • About Us
    • Meet Joe
  • Practice Areas
    • Criminal Defense >
      • Assault & Battery
      • Domestic Violence
      • Driving While License Suspended or Revoked
      • DUI
      • Drug Charges >
        • Marijuana Possession
        • Possession of Drug Paraphernalia
        • Prescription Fraud
        • Trafficking
      • Felony
      • First Time Offenders
      • Misdemeanor
      • Burglary & Theft Charges
      • Seal/Expunge
    • Family Law >
      • Custody & Child Support
      • Divorce
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