To apply for asylum in the U.S., you must be physically present in the U.S. or be seeking entry into the U.S. at a port of entry.
Forms of asylum
There are two paths to claim asylum in the U.S. The affirmative asylum process is for individuals who are not in removal proceedings and the defensive asylum process is for individuals who are in removal proceedings. Removal proceedings are when the United States government orders that you be removed (deported) from the United States (click here for more information).
- Affirmative Asylum: A person who is not in removal proceedings may proactively apply for asylum through U.S. government, with the 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, the applicant is referred to removal proceedings, where he or she may renew the request for asylum through the defensive process and appear before an immigration judge. More information about the affirmative asylum process can be found here.
- 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 defence against removal from the U.S.” More information about the defensive asylum process can be found here.
Individuals are in removal proceedings after being apprehended (taken into custody) in the United States or at a U.S. port of entry without proper legal documents or in violation of their immigration status. This also applies to those who were apprehended by U.S. Customs and Border Protection (CBP) trying to enter the United States without proper documentation, were placed in the expedited removal process, and were found to have a credible fear of persecution or torture by an Asylum Officer.
In both the affirmative and defensive process, individuals have a right to a lawyer. However, unlike the criminal court system in the U.S., the U.S. government does not provide lawyers for individuals in immigration court, even if they are unable to hire a lawyer on their own.
Other forms of protection: Withholding of Removal and CAT
There are other forms of protection in the United States besides defensive asylum. Withholding of Removal and the Convention Against Torture (CAT) are other defences against removal. The same form (form I-589) is used to apply for Withholding of Removal, CAT, and defensive asylum.
Withholding of removal
Even if you do not qualify for asylum, you may still be eligible for withholding of removal. If you are granted withholding of removal, you will not qualify for a green card but you will be allowed to remain and work lawfully in the United States. To win Withholding of Removal, you must demonstrate that it is more likely than not that you will suffer future persecution if returned to your home country because of your race, religion, nationality, membership in a particular social group, or political opinion. The standard of proof for withholding of removal is higher than for asylum: you need to show that there is more than a 50 percent chance you will be persecuted.
Relief under the Convention Against Torture (CAT)
If you fear torture in your home country, you may qualify for another form of relief under the CAT. You must prove that you are more likely than not to be tortured either directly by the government or with the “acquiescence” of the government if returned to your country of origin. “Acquiescence” generally means the government is aware of the torture but does not try to stop it.