What Is Affirmative Asylum?
The process to achieve asylum status in the United States is one of the most rigorous and scrutinous paths to immigration. All applicants must undergo an extensive vetting process through multiple government agencies, and asylum status will not be granted until the vetting process is complete.
According to the United Nations High Commissioner for Refugees, it is estimated that approximately 80 million people worldwide are forced to flee their home country and seek refuge. In 2020, 4.2 million of those sought asylum.
The Immigration and Nationality Act defines asylum as a form of protection against deportation of foreign nationals who would be persecuted in their home country. The law allows immigrants to apply for asylum when there is a clear and proven threat of persecution if returned to their home country due to nationality, race, religion, politics, or membership in certain social sects.
Persecution is defined as harm or threats of harm to the applicant and family members or others similar to the applicant. Asylum also pertains to applicants who have previously experienced past persecution, violence, or war in their country of origin.
In contrast to other immigration law requirements, the United States does not grant asylum to those seeking:
- A better life, work, or financial opportunities.
- As a method of circumventing the lengthy family-based immigration process.
- Applying for asylum without knowing the criteria for eligibility.
Those seeking asylum are fleeing such violence and persecution that their own government cannot protect them. Religion and political persecution are two of the more common reasons, but many flee over gang violence, forced smuggling, and drug cartels as well.
Asylum seekers are required to apply within one year of arriving in the United States, though the rule may be waived if you can show extraordinary circumstances causing your delay to apply or your circumstances have changed significantly, affecting your eligibility.
There are two types of asylum in the United States: affirmative and defensive. Applicants who are not in the process of deportation may apply for affirmative asylum with the United States Citizenship and Immigration Services (USCIS).
Removal proceedings begin if you are taken into custody in the United States or a port of entry for lack of proper legal documents, such as proof of identity, or violating your immigration status. The process also pertains to those taken into custody by U.S. Customs and Border Protection for attempting to enter the United States illegally, those in an expedited deportation process, and those who have a credible fear of torture or persecution by an asylum officer.
If your application for affirmative asylum is denied, you will be referred for deportation proceedings, at which time you can request defensive asylum with the immigration court.
What Are the Qualifications for Affirmative Asylum?
In order to apply for affirmative asylum in the United States, you must be physically present in the country or at a port of entry along the border and meet the criteria for protection. The vetting process is extensive and involves multiple government organizations, including:
- USCIS under the Department of Homeland Security.
- Department of Defense.
- Department of State.
- National Counterterrorism Center.
- Immigration and Customs Enforcement (ICE).
- U.S. Customs and Border Protection.
- Federal Bureau of Investigation (FBI).
Proof of Persecution
The criteria to qualify for asylum in the United States is specific and requires extensive vetting to prove. You will need to provide appropriate documentation that supports your fear of persecution or past persecution based on your nationality, race, religion, politics, or your membership in certain social groups, such as:
- Your own statement detailing why you are applying for asylum.
- Sworn statements from others that support your claim.
- Proof of identity for you and those who provided statements.
Applicants between 12 years and 9 months old to 79 years old must go through a rigorous background check, beginning with the biometrics appointment to provide your fingerprints, your photograph, and signature.
Background Checks and Screenings
To ensure you do not have a criminal history or participated in suspicious activity or previous violations, the FBI will use the information obtained at the biometrics appointment to conduct a thorough criminal background investigation. The background check will include:
- Your criminal history.
- Your affiliation with organizations considered to be a threat to the United States.
- Immigration records to discern any previous deportation proceedings.
- Intelligence records and information on you personally, as well as terrorist watchlists or affiliations.
- Extensive travel history.
- Your participation in foreign activity.
- Fraudulent activity, including identity theft.
You will receive an appointment for a personal interview with a USCIS officer specially trained in asylum law, research, interviewing, and decision-making. The officer will review the documentation you provided with your application and the identities of those who provided sworn statements and those you refer to in your documentation. Once the officer has made a decision following the interview, a supervisory asylum officer with review the decision to ensure it meets the legal requirements. Each case is unique, and in some cases, the supervisory officer may request additional review by the USCIS asylum division to determine whether to approve, deny, or refer your request for asylum to the immigration court.
Your application for affirmative asylum will be denied if you have:
- Been convicted of a serious crime in the United States.
- Been linked with a terrorist organization or been involved in terrorist activity.
- Participated in the persecution of others.
- Pose a threat to the United States.
Should the USCIS officer discover disqualifying information during the vetting process, your application may be denied or transferred to a defensive application, depending on the severity of your criminal activity and associations. In these circumstances, your asylum claim will be referred to the immigration court for determination. You should expect notice of a decision from the USCIS in approximately two weeks.
What Happens if I am Granted Affirmative Asylum?
If USCIS approves your application for asylum, you will be able to legally live and work in the United States and obtain health care assistance. Your spouse and unmarried children under 21 years old will also be granted asylum if they were included in your application. You will receive documentation from USCIS proving asylum so that you are able to register for benefits.
Asylum does not expire, however, the USCIS may choose to terminate your asylum status if you:
- Have a fundamental change in your circumstances that eliminates the fear of persecution.
- Have received asylum protection from another country.
- You received asylum by fraudulent means.
- You committed a crime or participated in activity that no longer makes you eligible for asylum in the United States.
After one year of asylum, you may apply to adjust your status to a lawful permanent resident of the United States. If granted, your status will be changed and you will be granted a green card, allowing you to remain permanently in the United States.
Philadelphia Immigration Lawyers at Surin & Griffin, P.C. Help Immigrants Apply for Affirmative Asylum Status in the United States
Applying for asylum status in the United States can be a daunting experience. The extensive vetting process and required documentation can be especially difficult for many, and there is no room for error. Our Philadelphia immigration lawyers at Surin & Griffin, P.C. will ensure your application package is complete and will prepare you for the interview. Call us at 215-925-4435 or contact us online for an initial consultation. Located in Philadelphia, we serve clients throughout Pennsylvania and nationwide.