Affirmative Asylum

Understanding the Asylum Process in the United States

The asylum process in the United States offers protection to individuals who have fled their home country and are unable to return due to a fear of prosecution. 

To qualify for asylum, a person must be a refugee and in the United States when they apply for protection. Section 101(a)(42) of the Immigration and Nationality Act (INA) defines a refugee as someone who is unable to return to their home country due to persecution or a fear of persecution based on their:

• Race
• Religion
• Nationality
• Membership in a particular social group
• Political opinion

Persecution is usually physical, but it can also be emotional or psychological.

There are two pathways to applying for asylum in the United States. 

1. If you're in the United States and not subject to removal (deportation) proceedings, you can proactively apply for affirmative asylum. 
2. If removal proceedings have already been started against you in immigration court, you can apply for defensive asylum. 

You can file for affirmative asylum regardless of your immigration status in the United States—whether you hold another temporary visa like a student visa, your immigration status has lapsed or expired, or you entered the United States illegally.

The asylum process is a pathway to permanent residency. You can apply for a green card one year after being granted asylum. 

How to File for Affirmative Asylum

To apply for affirmative asylum, you must be present in the United States or at a port of entry. You can remain in the United States while your application is being processed. 

Form I-589

To start an affirmative asylum application, you must complete and file a Form I-589, Application for Asylum and for Withholding of Removal with the U.S. Citizenship and Immigration Services (USCIS). 

This must be done within one year of your arrival in the United States. There are some limited exceptions to this timeframe, such as where your circumstances have changed affecting your eligibility for asylum or extraordinary circumstances caused the delay. 

USCIS should send you confirmation of receipt of your application within 30 days. 

Biometrics Appointment

In addition to confirmation that your application has been received, USCIS will also send you a biometrics appointment notice. You must attend an application support center on your allocated day for your fingerprints to be taken. 

Asylum Appointment

After providing your fingerprints, you will receive a notice of your appointment with USCIS at one of its offices. You can bring an attorney or accredited representative, an interpreter, and your spouse and children to the appointment (if they are applying for derivative asylum). 

Under the INA, an asylum interview should be conducted within 45 days of an application being filed.

USCIS Decision

A USCIS officer then decides whether you have a legitimate asylum claim. Under the INA, an affirmative asylum application should be decided within 180 days of an application being filed, unless exceptional circumstances exist. However, it's not uncommon for decisions to take longer. 

Immigration Court

If it is unclear whether your asylum claim is legitimate, USCIS will refer your matter to an immigration court to decide. In this situation, you become a defensive asylum seeker. 

Challenges to Affirmative Asylum

The affirmative asylum process is complex. Here are some common challenges applicants face. 

• Nature of the immigration legal system. Immigration laws are constantly changing, especially following changes in government. Recently, significant and rapid changes were made to the asylum application process in response to the COVID-19 pandemic. 
• Serious penalties for fraud. It is essential you complete your asylum application truthfully. If you make a fraudulent asylum application or lie about an important fact, the court may find you have made a “frivolous” application. This can result in a lifetime ban from applying for any U.S. immigration benefits. 
• Length of process. Despite the timeframes under the INA, the volume of applications and the COVID-19 pandemic have created a large backlog of affirmative asylum applications and lengthy wait times for decisions. 
• Proving date of entry. If you entered the United States without inspection (for example, by illegally crossing the border), it can be difficult to prove your entry date and show you are applying within the one-year time frame. 
• Risk of removal. If an immigration court rejects your asylum claim, and you do not hold any other valid visa, the court can order your removal from the United States. These orders typically prevent you from returning to the United States for several years. It also places you at risk of being returned to the country you fled from. 

An asylum immigration lawyer can assist you with your affirmative asylum application and help you navigate these potential challenges. 

Contact an Asylum Immigration Lawyer in New Mexico Today 

Asylum is the protection you deserve if you have faced persecution or have a well-founded fear of facing persecution upon returning to your home country. Our immigration attorney based in New Mexico can help you make sure you put forth your best effort to get this protection. Contact the Law Office of Scott D. Weaver today by filling out the online form or calling us at 505-218-7265 to schedule a consultation.