Affirmative Asylum vs. Defensive Asylum

1. What is the difference between affirmative asylum and defensive asylum?


Affirmative asylum is the process of applying for asylum in the United States from abroad. The applicant must submit an application to the United States Citizenship and Immigration Services (USCIS). Defensive asylum is the process of applying for asylum while already present in the United States. The applicant must appear before an immigration judge and demonstrate a fear of persecution if returned to their home country.

2. Is there an expedited process for affirmative asylum applications?


Yes, some affirmative asylum applications may be eligible for an expedited process. If you are already in the United States and meet certain criteria, you may qualify for an expedited process, which could shorten the time it takes to get a decision on your asylum application. Examples of criteria that would make you eligible for an expedited process include having an urgent medical or security condition, being a victim of domestic violence or other abuse, or being a refugee from a designated country of concern.

3. What requirements must applicants meet in order to be eligible for affirmative asylum?


In order to be eligible for affirmative asylum, an applicant must meet the following requirements:

1. The applicant must have a “well-founded fear of persecution” based on at least one of the five protected grounds: race, religion, nationality, political opinion, or membership in a particular social group;

2. The applicant must be physically present in the United States and have entered the country legally or have arrived without inspection;

3. The applicant must not have been firmly resettled in another country prior to arriving in the United States;

4. The applicant must not be barred from asylum for any of the statutory bars listed in 8 U.S.C. § 1158(b)(2); and

5. The applicant must submit a complete and accurate application within one year of arriving in the United States.

4. How long does the processing time for an affirmative asylum application typically take?


The processing time for an affirmative asylum application typically takes 4-6 months, but it can take longer.

5. Are there any differences in filing fees for affirmative and defensive asylum applications?


Yes, there are differences in filing fees for affirmative and defensive asylum applications. For affirmative applications, the filing fee is $50 per applicant. For defensive applications, the filing fee is $400 per applicant.

6. What happens during an affirmative asylum interview?


During an affirmative asylum interview, the asylum seeker will be asked questions by an immigration officer in order to determine whether they meet the legal criteria for asylum. They will be asked about their background, including where they are from, how they entered the U.S., their experiences and any persecution they have encountered or fear that they may face in their home country. The immigration officer will then make a decision regarding the asylum application.

7. What factors are considered when determining whether an applicant is eligible for affirmative asylum?


When determining if an applicant is eligible for affirmative asylum, the following factors are taken into consideration:

1. The applicant’s nationality, race, religion, social group, or political opinion.

2. Whether or not the applicant has experienced past persecution or has a well-founded fear of future persecution on any of these grounds.

3. Whether the applicant has a reasonable possibility of fear of persecution in his/her country of origin.

4. Whether the asylum seeker holds a valid entry document and has been physically present in the United States for a certain period of time.

5. Whether the applicant can demonstrate that returning to his/her home country would be dangerous or life-threatening.

6. Whether the applicant is able to establish that he/she meets the definition of a refugee as defined by U.S. law.

8. How does the adjudication process differ between affirmative and defensive asylum applications?


For affirmative asylum applications, the process begins when a person submits an application to U.S. Citizenship and Immigration Services (USCIS). An asylum officer will review the application and decide whether it meets the criteria for asylum. If the application is approved, the applicant is granted asylum status and can pursue lawful permanent residence in the United States.

For defensive asylum applications, the process begins when an individual is placed in removal proceedings in immigration court. The individual must demonstrate that they meet the criteria for asylum before an immigration judge. If the judge finds that the individual meets the criteria for asylum, they are granted asylum status and can pursue lawful permanent residence in the United States.

9. Do applicants have to prove a well-founded fear of persecution in order to qualify for asylum status under a defensive application?


Yes. According to the US Department of Homeland Security, applicants must prove they have a “well-founded fear of persecution” in their home country in order to qualify for asylum status under a defensive application. This fear must be based on the applicant’s race, religion, nationality, political opinion, or membership in a particular social group.

10. Is there a different burden of proof for applicants who apply for defensive asylum compared to those who apply for an affirmative application?


Yes, there is a different burden of proof for applicants who apply for defensive asylum compared to those who apply for an affirmative application. Defensive asylum applicants must demonstrate that they have a well-founded fear of persecution if they were to return to their home countries, while affirmative applicants must demonstrate that they are already victims of persecution or have suffered some other form of serious harm.

11. What documentation do applicants need to submit when applying for affirmative asylum?


Applicants applying for affirmative asylum must submit a complete and accurate Application for Asylum and for Withholding of Removal, Form I-589; supporting documents demonstrating their identity, nationality, and/or past persecution; evidence of their eligibility for asylum; and any other documents that may support their claim. They must also bring any dependents who are included in the application.

12. Does the U.S. Citizenship and Immigration Services (USCIS) provide any legal representation or assistance to applicants of affirmative or defensive asylum?


No, the USCIS does not provide legal representation or assistance to applicants of affirmative or defensive asylum. Applicants are responsible for obtaining their own legal representation and may not rely on officers, employees, or representatives of the U.S. government to provide legal advice or representation.

13. Can someone who is already a U.S. citizen or permanent resident apply for affimative or defensive asylum?


No, someone who is already a U.S. citizen or permanent resident cannot apply for affirmative or defensive asylum. An individual must be present in the United States and not yet have permanent residence status to be eligible for asylum.

14. Are there differences in the approval rates between affirmative and defensive asylum applications?


Yes. Affirmative asylum applications typically have a higher approval rate than defensive applications. According to a study by the American Immigration Council, the approval rate for affirmative cases is about 75 percent, while the approval rate for defensive cases is around 33 percent.

15. Can applicants appeal a denial of either affirmative or defensive asylum application?


Yes, asylum applicants can appeal a denial of either affirmative or defensive asylum application. In the United States, an applicant who is denied asylum can file an appeal with the Board of Immigration Appeals (BIA) within 30 days of the date of the denial. The BIA is a federal court that hears appeals from decisions made by Immigration Judges and U.S. Citizenship and Immigration Services (USCIS) personnel in asylum cases.

16. Are there any differences in how cases are discussed depending on whether the application is filed affirmatively or defensively?


Yes, there are differences in how cases are discussed depending on whether the application is filed affirmatively or defensively. When filing an application affirmatively, the petitioner must prove that they meet the requirements for the benefit they are seeking. In a defensive application, the petitioner has to prove that they meet the “burden of proof” in order to avoid a denial of their benefit. Additionally, if a case is filed defensively, the petitioner must be prepared to provide evidence in order to counter any claims made by the government.

17. How does an applicant know if they should file an affimative or defensive asylum application?


An applicant should file an affirmative asylum application if they are not currently in removal proceedings. An applicant should file a defensive asylum application if they are already in removal proceedings.

18. Are there any special privileges available to those granted affimative or defensive asylum?


Yes, those who have been granted affirmative or defensive asylum can apply for a work permit, an extension of their stay, and eventually permanent residence in the United States. Affirmative and defensive asylum seekers are also eligible for certain public benefits, including Medicaid and Supplemental Nutrition Assistance Program (SNAP). Additionally, they are eligible for certain services through the Office of Refugee Resettlement (ORR) and may be able to apply for a fee waiver or other benefits to help them adjust their immigration status.

19. How often must an individual renew their affimative or defensive asylum status?


Individuals must renew their affirmative or defensive asylum status every year, unless they have already been granted lawful permanent resident status.

20. What are the consequences of entering the United States without proper authorization if applying for either affimative or defensive asylum?


The consequences of entering the United States without proper authorization when applying for either affirmative or defensive asylum are serious. If an individual is caught entering the U.S. without authorization, they may be deported back to their country of origin and barred from re-entering the U.S. for a certain period of time. Additionally, they may also face criminal charges for unlawful entry or other immigration-related offenses. Furthermore, they may be denied asylum if they are found to have entered the U.S. unlawfully.