The Two Kinds of Asylum Applications

As was discussed in the prior blog, Refugees and Asylum-Seekers: What’s the Difference?, someone who is seeking protection within the United States is legally considered a refugee but because of the different process we call them aslyum-seekers or asylees.

The process for someone seeking refugee status through asylum can be divided into two categories: affirmative and defensive.  An affirmative asylum application is one that is presented when the applicant is not in removal (deportation) proceedings.  A defensive application is presented when a person is in removal proceedings.  This article gives an overview of both processes.  The next two articles in our series will discuss the details for each process including filing deadlines, work permits, and resources available to someone seeking refugee status through asylum.  

Affirmative Asylum Applications

Jurisdiction

United States Citizenship and Immigration Services (USCIS), which is part of the Department of Homeland Security, has jurisdiction over affirmative asylum applications.  There are several asylum offices in the United States.  Each covers a certain geographic region.  Utah is covered by the Houston, Texas, office.  Each office has processing times that are slightly different.

Instructions

Although both types of asylum requests use the same application form (Form I-589), the instructions are slightly different.  Affirmative applicants mail their applications in with the correct number of copies.  A receipt notice is issued and biometrics are then taken.  The applicant will then wait for an interview.  At the interview, an officer will determine whether to approve or deny the application.  Approved applicants are granted refugee status in the United States.  Denied applications are referred to the immigration court for further processing.

Processing times

The amount of time that an asylum application can pend usually ranges from 2-3 years.  If the application is a priority, then it can be less.  The current priority cases are:

1.) Applications that were scheduled for an interview, but the interview had to be rescheduled at the applicant’s request or the needs of USCIS;

2.) Applications filed by children; and

3.) All other pending affirmative asylum applications in the order they were received, with oldest cases scheduled first.  https://www.uscis.gov/humanitarian/refugees-asylum/asylum/affirmative-asylum-scheduling-bulletin

Defensive Asylum Applications

Jurisdiction

In defensive applications, an Immigration Judge will decide the case after a hearing that is very similar to a trial.

Instructions

Applicants present their applications to an Immigration Judge and are given instructions about where to send a copy of the application so that their fingerprints can be captured and a background check performed.  At that same hearing, applicants are given a choice about whether to expedite their final, trial-like hearing.  The consequences of that decision impact the applicant’s eligibility for work authorization during the process and will be more fully discussed in another blog post.

Processing times

The amount of time that a person is waiting for a hearing to present their asylum application to a judge and then the time between that hearing and the trial vary by court.  In Utah, a person can wait several months for the first hearing and then several years for the trial if they choose not to expedite.  The Salt Lake court is expecting to add a second judge by the end of 2016, which will likely impact those processing times.

People seeking asylum in the United States have a very difficult path.  They must navigate a complex legal system to submit their application, usually without the assistance of education or English-language ability.  Immigrant Legal Services assists people in this delicate situation by providing pro bono and low bono legal representation before both USCIS and the Immigration Court.  If you or someone you know are seeking asylum, please contact us for further information about this process.

Kate Barber
06.08.2016