A Short Guide to Affirmative Asylum - Frear Law
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PLEASE NOTE: Frear Law offers this general information as a public service. We do not handle asylum cases. If you are interested in applying for affirmative asylum, you can contact one of the many talented and passionate US asylum lawyers.

Working on an asylum case makes most immigration lawyers deeply proud of their profession. I can not think of anything more satisfying than helping a person who was persecuted in their home country to obtain a fresh start in United States. If you are someone has suffered persecution, you may have the opportunity to come to the United States seek asylum and start a new life.

In this post, I will discuss affirmative asylum, the requirements and the interview process. Although this post will give you information about asylum, I highly recommend that you consult with an immigration lawyer to determine if asylum is a good option for you.

What are the different types of asylum?

There are two different types of scenarios in which you can apply for asylum  The two types of asylum are affirmative and defensive asylum. You make an affirmative asylum application when you come to United States and apply for asylum without being placed in removal proceedings. Defensive asylum on the other hand involves applying for asylum as a defense to removal proceedings.

Affirmative Asylum Eligibility

Asylum is available to Victims of Persecution

Affirmative asylum is designed for those who have suffered persecution or fear future persecution on account of one of five grounds. These grounds include race, religion, nationality, membership in a particular social group or political opinion.

When USCIS evaluates your asylum claim they will be trying to determine if you have a legitimate claim of persecution or fear of future persecution. In order to decide, they will look at all of the circumstances. The adjudicator will be skeptical of you claim of persecution if certain factors are present. For example, the government will be skeptical if you have returned to your home country after entering the United States. In this scenario, you must have a good explanation for returning to your home country where you were having so many troubles. During the preparation phase it is important to think about all of the factors that would be inconsistent with your story of abuse or persecution.

Asylum is not available if you can live peacefully in a different area or country

The asylum laws in the United States are designed to protect people who have no other options for living a decent and safe life. If there is another area in your country where you could avoid persecution, then you would not qualify for asylum. Likewise, if you can live in another country to avoid persecution, then you will not qualify for asylum.

You must apply for asylum within one year of entering the United States

Generally, in order to qualify for asylum, you must show by clear and convincing evidence that you applied for asylum within one year of entering the United States. USCIS will consider applications to be filed on the day that they are received. By proving that the application was sent earlier, you can be rebut this assumption . Given the strict deadline, you should plan to file for asylum early in order to avoid an unnecessary denial.

Exceptions to the One Year Filing Deadline for Asylum

There are some exceptions to the one year filing requirement. One exception involves a change in country conditions. For example, if persecution of your religious group intensified since your arrival, then you may qualify for an exception. Additionally, a change in your legal situation may give you a basis for an exception. For example, if you divorced while waiting for a marriage based green card, you may be able to file after one year. Other extraordinary circumstances for missing the deadline will be considered on a case by case basis.

Other Bars to Asylum

In addition to the one year filing requirement, there are other asylum bars that will be on the interviewer’s radar. These bars include a prior denial of asylum by an immigration judge; the ability to live in a third country; prior acts of persecution committed by the applicant; and any aggravated crimes that the applicant has committed.

The Asylum Interview Process

Asylum Interview Wait Time

One question that immigration lawyers frequently get is “how long will this take?” The asylum interview wait time will be relatively short if you filed after January 2018. This is due to a new policy to adjudicate the most recent asylum applications first. This policy is designed to discourage weak claims of asylum that allow the asylum applicant to obtain work authorization while the application is pending. The government’s assumption is that a shorter wait for the interview will translate to fewer baseless asylum applications.

What happens at the asylum interview?

The interview for affirmative asylum usually lasts between one to four hours. During that short period of time, you and your immigration lawyer have the burden of showing that you suffered persecution. You will also have to prove any exceptions to bars to asylum that apply. The interviewer will weigh the future risk of persecution and ultimately make a decision based on the evidence.

What can happen after the asylum interview?

After you present your case to an interviewer, the USCIS will make a decision. They could decide to approve your application, issue a notice of intent to deny your application or refer you to immigration court for removal proceedings.

Conclusion

Given the importance of the asylum process, I highly recommend that you thoroughly prepare with an immigration lawyer. As part of your preparation, you should craft a statement before your initial consultation. This statement will help you organize your thoughts. It will also help your immigration lawyer decide if you have a viable asylum case. If you prepare carefully, understand the requirements and learn about the process you will be in a better position to win your asylum case!