Asylum

There are two main types of asylums available to individuals’ seeking protection in a foreign country due to a credible fear of persecution in their home country. These types are known as “Affirmative Asylum” and “Defensive Asylum.” Both types of asylums allow individuals to request asylee status and protection based on well-founded fears of persecution or harm.

1. Affirmative Asylum:

Affirmative asylum is a process through which individuals who are physically present in the US apply for asylum before any removal or deportation proceedings have been initiated against them. It is a proactive way for individuals to seek protection. You may apply for asylum status regardless of how you arrived in the United States or your current immigration status. Key points about affirmative asylum include:

• Application Submission: The applicant applies for asylum to the appropriate government agency or immigration authority. In the United States, this is usually done by submitting Form I-589, Application for Asylum and for Withholding of Removal, to the U.S. Citizenship and Immigration Services (USCIS).
• Asylum Interview: Once the I-589 asylum application is filed with USCIS they are scheduled for an asylum interview with an asylum officer. During this interview, they provide detailed information about their background, reasons for seeking asylum, and the persecution they have faced or fear in their home country. If the asylum officer approves the application, the applicant is granted asylum 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.

Affirmative asylum is intended to provide a legal and structured process for individuals to seek protection in another country due to a well-founded fear of persecution in their home country based on factors such as race, religion, nationality, political opinion, or membership in a particular social group. The specifics of the process can vary by country and are governed by each country’s immigration and asylum laws.

2. Defensive Asylum:

Defensive asylum is a process used when an individual is already in removal or deportation proceedings and seeks asylum as a defense against being removed from the country. This type of asylum is sought in an immigration court as part of the individual’s legal defense against removal. Key points about defensive asylum include:

• Removal Proceedings: The individual may be placed in removal proceedings after being apprehended at a border, port of entry, or elsewhere within the country. They can then assert a claim for asylum as a defense against removal.
• Asylum Application in Court: The individual presents their case for asylum before an immigration judge during a formal hearing. They must provide evidence and arguments to establish their eligibility for asylum under the legal criteria.
• Credible Fear or Reasonable Fear Interviews: Before the asylum case is heard in court, in some cases the individual may also undergo credible fear or reasonable fear interviews, which determine whether there is a credible or reasonable fear of persecution or harm. These interviews are conducted by asylum officers and determine whether the individual’s case should be referred to the immigration judge.
• Appeals: If the immigration judge denies the asylum claim, the individual may have the option to appeal the decision to the Board of Immigration Appeals (BIA) and potentially to federal courts.

Both affirmative and defensive asylum provide avenues for individuals to seek protection in a foreign country due to a credible fear of persecution in their home country. The specific procedures and requirements can vary by country and are governed by each country’s immigration and asylum laws.

Moreno Law offers personalized representation to clients seeking asylum in the United States, we analyze the case in detail and present their personal story. Asylum seekers come from all parts of the world, and we have experience working on a variety of global issues that arise and cause those in fear to flee. We recognize the sensitivity required to provide compassionate counseling. Whether the client is detained or non-detained our commitment to proper representation does not alter. Our asylum defense is prepared in excruciating detail with the utmost care and includes country research, witness preparations, preparing clients to testify in court, and gathering experts to assist with proving their claim.