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Which type of asylum applies to you, affirmative or defensive?

On Behalf of | Aug 23, 2021 | Immigration Law

Every year, thousands of people from around the globe seek asylum in the United States. Kentucky and other U.S. states offer asylum to those who can demonstrate a credible fear of harm or persecution if they were returned to their native country. Asylum offers a safe harbor to those who qualify and gives them the opportunity to start afresh. Asylum seekers may apply irrespective of how they came to this country and what their immigration status is when applying for one of the two types of asylum.

Affirmative asylum

When an immigrant is in the U.S. and wishes to apply for asylum, they must do so within a year’s time of arrival unless exigent circumstances prevent them from doing so. They will need to present an application to the United States Center for Immigration Services. An immigration officer will review the evidence presented against the criteria for asylum. At this point, the applicant may remain in the U.S. but not for purposes or work unless granted special permission. If the application is accepted, the applicant can now live and work in the U.S.

If the immigrant is denied asylum, their application will be turned over to an immigration court at the Executive Office for Immigration Review where they must mount a defense against deportation. Thus, they will now be considered a defensive asylum candidate.

Defensive asylum

If an asylum seeker is outside of the U.S. and presents their case at a point of entry, has crossed the border without authorization or has overstayed their visa, they will be processed for deportation. An immigrant who was denied an affirmative asylum claim can file a defensive asylum petition against imminent deportation. During this time, their application will be reviewed by an EOIR immigration judge for a decision. If the application is denied, the immigrant will continue in deportation proceedings. However, a favorable decision gives them the right to remain in the U.S.

Applying for asylum is not an easy process and can take months to complete, but millions of foreign nationals with a fear of political, religious, ethnic or other form of persecution have found refuge through this program. Many successful applicants go on to become productive members of their new communities in the United States.