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What Is Asylum?

Asylum is a United States protective program which grants refugees and asylees the legal right to work and live in the U.S., apply for permanent residency and eventually citizenship, and travel outside of the U.S. An asylee may also be granted the right to file for their spouse and minor children to come to the U.S. as well.

Refugees and asylees differ only in the place that the person asks for protection from. An asylee will ask for protection while in the U.S., whereas, refugees ask for protection while outside of the U.S. Either way, anyone granted asylum protections must be able to meet the definition of a refugee. According to the Department of Homeland Security, “a refugee is defined as a person outside of his or her country of nationality who is unable or unwilling to return because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinions.”

What is Affirmative Asylum vs. Defensive Asylum?

Affirmative asylum seekers are those immigrants who have yet to begin the deportation process in court. Instead of being in court, in front of a judge, immigrants will present their cases in an office-like setting to immigration officers at the United States Citizenship and Immigration Services (USCIS).

The case presented will be decided by an asylum officer. The asylee will engage in an interview (an applicant may have an interpreter present if needed) to determine if they are telling the truth about their asylum case. At the end of the interview, the officer will either grant or deny the application. A denial at the affirmative level will trigger a defensive asylum approach. This ultimately grants the immigrant a second chance to present their case before a judge.

If an immigrant is already going through a court case for deportation, they will apply for defensive asylum. If the asylee is applying for defensive asylum, they will present their case to an Immigration Judge at the Executive Office for Immigration Review (EOIR). An attorney for the Department of Homeland Security will be present, and they will cross-examine the applicant. During this proceeding, the applicant may call on witnesses to provide proof of the need for asylum protections.

If the judge denies the asylum protection claim, they still may be protected from removal. This protection is similar to asylum but not as beneficial. Withholding of removal may be granted if the judge believes that more likely than not the immigrant will be persecuted upon return. The withholding recipients will be entitled to renewable work visas, but they may not leave the U.S. or become a permanent resident through the withholding protections.

According to, in 2014 nearly 10,000 defensive asylum applications were granted and roughly 15,000 affirmative asylum applications were granted. In the same year, the U.S. granted asylum protections mostly to asylees from China and Egypt.

When Should I Apply for Asylum?

If you are an immigrant and wish to apply for asylum protection, you have one year from the time of your arrival in the U.S. If you fail to apply for asylum protection within one year, you will be barred from this protection and this form of relief will not be granted to you. Exceptions to this one-year bar include:

  • Changed country conditions
  • Mental defect
  • Serious illness
  • Ineffective assistance of counsel

If you are concerned about your asylum application or your status as a non-citizen and are seeking advice, it is important to consult with an experienced immigration attorney. The attorneys at Bretz & Coven, LLP have a long history of zealous, knowledgeable, and honest advocacy on behalf of immigrants. To schedule your consultation, contact our qualified immigration law attorneys today at (212) 267-2555 or fill out our contact form.

Immigration Consequences of Criminal and Fraudulent Conduct
The immigration consequences of criminal or fraudulent conduct can be harsh and often illogical. Even a very minor offense could have a dramatic immigration consequence, including deportation, detention without bond, being denied naturalization, a visa or re-entry into the United States. Likewise, the use of fake or fraudulent documents, aliases, and other misrepresentations can have similar immigration consequences. Kerry Bretz and Bretz & Coven have been counseling non-citizen criminal defendants, as well as their lawyers, for over 20 years. We have a long history of strategizing deportation and removal defenses, as well as applications for waivers, in very complicated cases.

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