How to Obtain Asylum in the United States

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.