Differences Between Affirmative and Defensive Asylum Applications
U.S. “Affirmative” Asylum Processing with USCIS

In the affirmative asylum process, individuals who are physically present in the United States, regardless of how they got here and regardless of their current immigration status, may apply for asylum. They do so “affirmatively” by submitting an application to USCIS. In keeping with the idea that a genuine asylum-seeker should present himself/herself to authorities “without delay,” asylum-seekers must apply for asylum within one year from the date of last arrival in the United States, unless they can show changed circumstances that materially affect their eligibility or extraordinary circumstances relating to the delay in filing, and that they filed within a reasonable amount of time given those circumstances.

The applicant must file an application (Form I-589) by sending it to a USCIS Service Center and are seen by Asylum Officers – in non-adversarial interviews. The interviews take place at one of the eight Asylum Offices throughout the U.S. or, if the applicant lives far from one of those offices, at a District Office.

NOTE: Affirmative asylum applicants are almost never detained. They are free to live in the U.S. pending the completion of their asylum processing with USCIS and, if found ineligible by USCIS, then with an Immigration Judge .

Normally, an affirmative asylum applicant is interviewed by USCIS within 43 days of application and, if not approved, is referred by USCIS to an Immigration Judge at the Executive Office for Immigration Review (EOIR) for further and de novo consideration. The time period is somewhat longer if the applicant does not reside near one of the eight Asylum Offices and an Asylum Officer is required to go to a distant District Office to conduct the interview.

Asylum applicants referred to an Immigration Judge for such processing are also not detained.

U.S. “Defensive” Asylum Processing with EOIR

Immigration Judges with the Executive Office for Immigration Review (EOIR) hear asylum applications only in the context of “defensive” asylum proceedings. That is, applicants request asylum as a defense against removal from the United States. Immigration Judges (IJs) hear such cases in adversarial (court-room-like) proceedings: the IJ is the judge that hears the applicant’s claim and also hears any concerns about the validity of the claim raised by the Government, which is represented by an attorney. The IJ then makes a determination of eligibility.

If the applicant is not found eligible for asylum, the IJ determines whether the applicant is eligible for any other forms of relief from removal and, if not, will order the individual removed from the United States.

Aliens generally are placed into defensive asylum processing in one of two ways: