Affirmative vs. Defensive

“Affirmative” Asylum 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 by submitting an application to the USCIS. 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. They file an asylum application by sending it to a USCIS Service Center, and are interviewed by Asylum Officers. Affirmative asylum applicants are free to live in the U.S. pending the completion of their asylum processing with the USCIS and, if found ineligible by the USCIS, then with an Immigration Judge. Asylum applicants referred to an Immigration Judge for such processing are usually not detained.

U.S. “Defensive” Asylum Processing with EOIR Immigration Judges hear asylum applications only in the context of “defensive” asylum proceedings. Applicants request asylum as a defense against removal from the United States. Immigration Judges hear such cases in adversarial proceedings. 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: 1) they are referred to an IJ by Asylum Officers who did not grant asylum to them, or 2) they are placed in removal proceedings because they: a) are undocumented or in violation of their status when apprehended in the U.S. or b) were caught trying to enter the U.S. without proper documentation (usually at a port-of-entry) and were found to have a credible fear of persecution or torture.

Asylum-Seekers and Expedited Removal

Most undocumented immigrants stopped by immigration officers at a U.S. port-of-entry (POE) may be subject to expedited removal. This means that, for persons other than genuine asylum seekers, refusal of admission and/or removal from the United States can be effected quickly. Any person subject to expedited removal who raises a claim for asylum – or expresses fear of removal – will be given the opportunity to explain his or her fears to an Asylum Officer.

If the individual expresses a fear of return, the individual is detained and given an interview by an Asylum Officer. The role of the Asylum Officer is as an Asylum Pre-Screening Officer (APSO) who interviews the person to determine if he or she has a credible fear of persecution or torture. This is a standard that is broader — and the burden of proof easier to meet — than the well-founded fear of persecution standard needed to obtain asylum. Those found to have a “credible fear” are referred to an Immigration Judge to hear their asylum claims. Most individuals who are found to have a credible fear are released. However, some are not released, and instead are detained while their asylum claims are pending with the Immigration Judge.

Do you think you have an asylum matter? Contact our firm to setup a free consultation.

About okqlaw
Omar K. Qadeer, Esq., began working in New Jersey shortly after becoming admitted to the New Jersey Bar and has been with the firm since. Mr. Qadeer practices in a wide range of areas, including family law (divorce, child custody, child support), immigration, civil litigation, municipal law and criminal defense. Mr. Qadeer earned his J.D. from Roger Williams University School of Law, where he gained experience as a student attorney in the school's Community Justice Law Clinic, working on child support, child custody and divorce cases. Within his first year, Mr. Qadeer had made approximately 200 court appearances in his areas of practice. While the number of appearances has increased over time, Mr. Qadeer still offers the same level of professionalism and care that his clients appreciate. Through his law school career, Mr. Qadeer also worked as an intern for the Office of the Executive Counsel for the Governor of Rhode Island and part-timed as a judicial clerk for the Honorable Judge Stephen P. Erickson of the Federal District Court in Newport, Rhode Island. Mr. Qadeer also interned at Rhode Island Legal Services, where he gained experience in a number of different fields, from consumer/bankruptcy law to family and tax law. Before coming to New Jersey, Mr. Qadeer worked as a legal intern and law clerk in Rhode Island and Massachusetts, respectively. In addition to his law degree and various experiences, Mr. Qadeer also has a Masters in Criminal Justice (MS) from Roger Williams University and a Masters in Psychology (MA) from the University at Buffalo. Mr. Qadeer completed his undergraduate education from the University at Buffalo in Psychology and graduated with distinction, being awarded high departmental honors for his work in the Department of Psychology's Honors Program. Mr. Qadeer continues to work towards looking out for the best interests of the firm's clients.

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