For non-U.S. citizens escaping persecution from their home country, applying for asylum in America is a way to protect themselves and their loved ones. But U.S. immigration laws are incredibly complex – even more so following federal changes to the asylum system during the earlier Trump administration – so it can be daunting for those new to the asylum process.
One of the first things any asylum seeker should understand is the two types of asylum they can apply for, which are affirmative and defensive. Asylum seekers should learn the differences between the two to prepare accordingly.
Affirmative asylum
An individual could apply for affirmative asylum if U.S. immigration officials didn’t apprehend them upon their arrival to the country. Applicants must file an accomplished form within one year of their arrival to the United States, after which they will wait until they receive an interview notice with an asylum officer. During the interview, the asylum officer will decide the applicant’s eligibility as a refugee, and it could take at least two weeks from the interview to receive a decision.
Defensive asylum
Defensive asylum is the type an asylum seeker applies for in response to being removed from the U.S. – these include individuals who have been apprehended for not having proper legal documents or violating their immigration status. Individuals who request asylum at or near a port of entry or were arrested at the border must also undergo the defensive asylum process.
Compared to those applying affirmatively, defensive asylum seekers have to go in front of an immigration judge instead of an asylum officer. The hearing with the immigration judge is often more adversarial than the asylum officer’s interview since the judge will ask the asylum seeker if any violation charges against the applicant are accurate.
In both processes, the applicant has a right to an attorney. An attorney can answer any questions about the procedure and help applicants. If you are an applicant, remember that, unlike the federal criminal court system, the U.S. government will not offer attorneys if your case heads to immigration court.
