Asylum

Asylum is a protection granted to foreign nationals already in the United States or arriving at the border who meet the international law definition of a “refugee.” The United Nations 1951 Convention and 1967 Protocol define a refugee as a person who is unable or unwilling to return to his or her home country, and cannot obtain protection in that country, due to past persecution or a well-founded fear of being persecuted in the future on “ACCOUNT OF RACE, RELIGION, NATIONALITY, MEMBERSHIP IN A PARTICULAR SOCIAL GROUP, OR POLITICAL OPINION

Aliens may apply for Asylum in the United States if they are physically present in the United States regardless of how they arrived in the United States. This must be done within one year of the date of their last arrival in the United States, unless they can show:

• Changed circumstances that materially affect your eligibility for asylum or extraordinary circumstances relating to the delay in filing.
• You filed within a reasonable amount of time given those circumstances.

This voluntary petition is referred to as the Affirmative asylum process and applicants are rarely detained or removed by the U.S. Immigration and Customs Enforcement (ICE) during the adjudication of the asylum petition. Asylum applicants may also live in the United States while their application is pending before USCIS and can continue to remain in the USA if they are found to be ineligible.  However, USCIS may refer denied asylum claims to the immigration court for re-determination by the Immigration Judge (Deportation/Removal proceeding), and the alien risks being deported if the Immigration Judge denies or renders unfavorable decision on the asylum petition. This process leading to the adjudication of asylum claims and renewing asylum requests before the Immigration Judge is referred to as the Defensive Asylum process. For asylum processing to be defensive, you must be in removal proceedings in immigration court with the Executive Office for Immigration Review (EOIR). Denial of Asylum claims by the Immigration Judge may also be appealed to a higher review body.

• Affirmative Asylum: A person who is not in removal proceedings may affirmatively apply for asylum through U.S. Citizenship and Immigration Services (USCIS), a division of the Department of Homeland Security (DHS). If the USCIS asylum officer does not grant the asylum application and the applicant does not have a lawful immigration status, he or she is referred to the immigration court for removal proceedings, where he or she may renew the request for asylum through the defensive process and appear before an immigration judge.
• Defensive Asylum: A person who is in removal proceedings may apply for asylum defensively by filing the application with an immigration judge at the Executive Office for Immigration Review (EOIR) in the Department of Justice. In other words, asylum is applied for as a defense against removal from the U.S. Unlike the criminal court system.

A minor immigrant child who arrived in the U.S. or at a port of entry without a parent or guardian. UACs are children below the age of 18, who enter the U.S. without their parents or legal guardians. Those who arrive with a parent or legal guardian will be designated as UACs if the government pursues criminal charges against their parents or legal guardians. After apprehension by immigration authorities, UACs are placed in temporary care of the Office of Refugee Resettlement (ORR) within the U.S. Department of Health and Human Services (HHS).