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Two Types of Asylum Claims

Unlike some other immigration policies, an alien may apply for asylum regardless of the alien’s status, meaning even if an alien enters the country illegally, asylum can still be applied for. There are two ways to obtain the protections afforded by asylum, either affirmative or defensive. Affirmative asylum processing means that the alien takes proper steps to request asylum even though the U.S. has not initiated any action against the alien. Once some form of action has been taken against the alien, the alien is put into a defensive asylum proceeding where the alien will be trying to prevent removal (also called deportation). If an alien believes that he or she qualifies for asylum, it is important to consult with a knowledgeable immigration attorney since an affirmative asylum request can be given two chances plus an option to appeal, whereas a defensive request is given only one chance plus an option to appeal. The risks and difficulties that are typically involved in an asylum case also make having a competent immigration attorney extremely valuable.

Affirmative Asylum Processing

One of the reasons that affirmative processing of asylum cases can be so helpful is that it allows the alien to proceed at his or her own speed. An alien can meet with an immigration attorney, consider the facts of the case at hand, review evidence or the possibility of obtaining evidence, and decide that asylum should be requested, all while remaining able to explore and consider other possibilities. In addition, an affirmative action is like getting two chances for the case to be presented as opposed to a defensive action. This is because even if the USCIS denies the application for asylum, the case is referred to an immigration judge to hear the case from the beginning and the judge is not required to come to the same conclusion as the USCIS. If the alien were to simply to be thrown into a deportation hearing in front of a judge, the initial step of having the USCIS consider the facts is no longer available. Obviously, anything that increases the chances of a favorable outcome for the alien is recommended.

Affirmative processing can also be less stressful. The application is submitted on the alien’s timeline as opposed to a court imposed deadline. The affirmative asylum request involves an interview with an immigration officer which is not adversarial like in a courtroom hearing. There is no one at the interview trying to prove that the asylum application should be denied. Instead, the immigration officer asks questions and considers evidence in order to determine whether or not an asylum application should be granted. An alien may have an attorney present to assist with this process, and it is recommended that an alien consult with an attorney before going through this process. If the immigration officer denies the application for asylum, the alien will then go before an immigration judge to present the facts of the case again, but this time it will be in a defensive asylum proceeding.

Defensive Asylum Proceedings

An alien can end up in defensive proceedings in two ways. First, as discussed above, the alien can file an affirmative application for asylum which, if it is denied, is then referred to an immigration judge. Second, an alien might be arrested or detained for some unrelated crime or stopped at a port of entry without proper documents and placed in removal proceedings. At this point, the alien may use an asylum claim as a defense to the removal proceedings. Either way, unlike the interview with affirmative processing, these proceedings are adversarial. This means someone, in this case, an attorney from Immigration and Customs Enforcement (ICE) is presenting evidence against the alien. The alien is allowed to have an attorney working for the alien, but the government does not provide the attorney. It is the alien’s responsibility to find an immigration attorney who has the knowledge and experience needed to properly defend the case and to suggest other defenses or reasons why removal is not appropriate or why the alien should be allowed to stay. If the alien and his or her attorney are able to convince the court that asylum should be granted, the alien can receive all the benefits that come from having asylum granted. However, it is also possible for either side to appeal a decision at this stage. This means that if the alien wins, ICE is allowed to appeal the decision and the alien may have to go through the entire process again. If the alien loses, however, the alien may appeal the decision and get another chance to make the case that asylum would be appropriate.

Contact us

Regardless of which stage you are in, whether you are considering filing an asylum application or if you are already in removal proceedings, the attorneys at The Law Firm of Shihab & Associates would be happy to speak with you and inform you of your rights and options. Please contact one of them immediately at any of their four offices for prompt, competent assistance.

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