Individuals who are in the United States and are afraid to return to their home countries may qualify for asylum. How an individual goes about doing so depends on their individual circumstances. Generally, there are two types of applications: affirmative and defensive.
Affirmative Application Process
Individuals who are not in removal proceedings can apply for asylum affirmatively, with the US Citizenship and Immigration Service, or USCIS. Currently, USCIS processes asylum applications on a last in, first out basis. This means that recently filed applications are generally decided within a few months of filing. However, applications that were filed before USCIS implemented the last in, first out system in January 2018 are stuck in a backlog and may not be adjudicated for years.
Before USCIS will decide an asylum application, an asylum officer will interview the applicant about their fear of return. If, after this interview, the officer determines that the applicant qualifies for asylum, their application will be granted. If the officer does not think that the applicant qualifies, they will, generally, refer the applicant to immigration court. If, however, the applicant still has some other immigration status, USCIS will just deny the asylum application.
Defensive Application Process
Individuals who are in removal proceedings cannot, generally, apply for asylum with USCIS. Instead, they have to file their applications with the immigration judge in charge of their case. In some cases, the individual has already applied with USCIS and was referred to immigration court. They can then renew their asylum application with the immigration judge. In other cases, the individual never had the chance to apply with USCIS and the immigration judge will be the first person to decide the application.
Once the immigration judge has received the application, they will generally schedule the applicant for an individual hearing. During this hearing, the applicant can present evidence and testify in support of the application. They can also have other people testify. A government attorney will be present at the hearing and can also ask questions of the applicant and any other witnesses. After the hearing is complete, the immigration judge will issue his or her decision. If the applicant disagrees with that decision, they have the right to appeal it to the Board of Immigration Appeals.
If you are looking to apply for asylum, reach out to us at 312-273-9807 to schedule a consultation!