When a foreign national seeks to remain in the country because they fear persecution in their state of origin due to their race, ethnic group, religion, nationality, political affiliation or membership in a particular social group, what they are attempting to gain is "asylum."
Asylum is a specific, legal status that allows immigrant aliens to remain in the United States under certain, limited, circumstances. There are two different types of asylum applications—defensive and affirmative—and both generally require the assistance of an immigration attorney. Below we will discuss defensive asylum procedure.
First, though, let's consider characteristics that are shared by affirmative and defensive processes. Every asylum application must be made by a refugee, normally through their immigration lawyer, as defined by the United States Congress in the Immigration and Nationality Act. To qualify as a refugee, the applicant must be attempting to escape one of five legally distinct circumstances, though each of these circumstances carries a discriminatory component that must be proven to some degree by the applicant.
For a better understanding of the complex details of each of these five circumstances, contact an immigration attorney for more details.
Now, let's look at the two different types of applications.
A defensive application is made when the applicant is a foreign national who is in the process of being deported from the country. For example, the applicant was detained by the law enforcement and sent to the immigration court for a hearing. In this case, asylum claim may be raised by the applicant's immigration lawyer as a defense to deportation and a legal way to have the deportation proceedings put aside in favor of admission of the applicant as a lawful asylum seeker.
In this case, the department of Immigration and Customs Enforcement will likely oppose the granting of asylum and they will provide their own lawyer to argue against the asylum seeker in court. It is important for a person in this position to prepare alternative arguments, which might also stay their deportation, instead of relying only on one claim. It is also important to remember that if a person is not ready for the court hearing for any reason or is not able to provide legitimate arguments, a judge may consider that the arguments of the government attorney were accepted by the foreign national and issue an uncontested judgment denying relief that can lead to an expedited deportation.
An affirmative asylum is a process when an individual files an asylum application with the department of US Citizenship and Immigration Services (USCIS) voluntarily before being detained by the law enforcement services. The whole process takes place in the USCIS, which is an administrative agency, not in a courtroom.
The benefits of the affirmative application are two fold. First, the entire proceeding is not conducted under the strain of a deportation hearing. The applicant is not under the immediate threat of being sent to their state of origin, thus they have more room to breath and consider their options. Second, and perhaps more importantly, when an asylum seeker chooses to apply themselves their case is first heard by an asylum officer who can approve their application without the interference of ICE or an immigration court.
If you are afraid of persecution in your home country or are otherwise facing deportation, contact an experienced immigration lawyer as soon as possible.