Affirmative & Defensive Asylum Petitions - What you need to know
Immigrants coming to the United States who are unable or unwilling to return to their country of origin because they experienced persecution of or have a well-founded fear of future persecution on account or their race, nationality, religion, membership in a particular social group, or political opinion - must apply for asylum during the first year after entering the United States. If the immigrant is not in removal proceedings, the application is filed and adjudicated by an asylum officer with the United States Citizenship and Immigration Services (USCIS). Immigrants who are in removal proceedings must file the application with the immigration court.
Petitioning for asylum before USCIS. This process is known as an affirmative asylum application, and the interview conducted by the asylum officer is carried out in a non-adversarial manner. In order to determine whether or not to grant asylum, the officer conducting the interview evaluates the applicant’s testimony and compares it to the written answers provided in the asylum application form. The applicant should provide supplementary material to enhance his/her credibility. These can be letters from witnesses to events that occurred in the applicant’s home country, police reports, etc. Additionally, the asylum with consider country condition reports prepared by reliable sources, and render a decision in accordance with immigration law.
If the asylum officer finds that the immigrant meets the requirements under immigration law, the discretionary benefit of asylum is granted by the officer. However, if the asylum officer concludes that the applicant is ineligible for asylum, the officer will place the immigrant in removal proceedings and refer the matter to the immigration court. An immigration judge will then evaluate the immigrant’s asylum claim anew (de novo review).
Petitioning for asylum before the immigration court. This process is known as a defensive asylum petition and is conducted in an adversarial fashion. An immigration judge will examine the contents of the immigrant’s written asylum application and provide advisals of the serious consequences that attach when filing of a frivolous application. The immigrant should also support the claim with witnesses and documentation such as affidavits from witnesses, police or other judicial reports, country condition reports prepared by reliable sources, expert witness testimony regarding the country conditions that gave rise to the immigrant’s claim, etc. Once the immigration judge has received all supporting materials and witness list, a date is selected for the trial, known as a merits or individual hearing.
At the merits hearing, the immigrant sometimes with the help of counsel, gives testimony in support of the claim, other corroborating and expert witnesses do likewise. The government’s lawyer, known as assistant chief counsel or trial attorney, will then ask questions in an effort to raise doubts as to the validity of the claim. The immigration judge can and usually do ask questions to clarify any lingering doubts that may exist. Once the hearing is concluded the immigration judge will render a decision forthwith, or ask the immigrant to come on another date for the decision.
Asylum is a discretionary benefit, and if the immigration judge concludes that the applicant is eligible, the benefit of asylum is granted. If the immigration judge determines that the immigrant is not eligible, the immigration judge can offer other forms of relief or protection from deportation. However, if the applicant is ineligible for any form of relief available from deportation, then the immigration judge denies the asylum application and orders the removal of the immigrant from the United States.
If the immigrant or the government’s attorney disagrees with the immigration judge’s decision, the parties can then appeal the decision to the Board of Immigration Appeals (BIA) in Falls Church, Virginia. Lastly, if the immigrant disagrees with the BIA decision, the immigrant can file a petition for review of the order with the federal circuit court that has jurisdiction over the matter - usually the circuit court of appeals where the immigrant resides.
When an immigrant is granted asylum, the following benefits attach:
permission to remain and work in the United States,
asylum is also granted to other immediate family who are in the United States and were included in the asylum application,
if the immigrant has eligible immediate family members in his/her country of origin, the immigrant can petition that they come to the United States,
after one year in asylee status, the immigrant can apply to become a legal permanent resident (LPR). At the conclusion of a five years as an LPR, the immigrant can petition U.S. citizenship.