If you are present in the United States in any valid or expired immigration status, and you fear returning to your country of origin, you can file an application for asylum with one of several asylum offices located in the United States. This is called an “affirmative” asylum application filing since you are taking active steps yourself to apply for immigration status in the United States. Filing for asylum with the asylum office triggers a long process, which is described in detail here. You will be interviewed by an officer, usually one time but sometimes more, before a decision is made to grant or deny your asylum application.
Another way that a person’s asylum journey can begin in the US is if they are without status and are detained by the immigration authorities for being present in the country unlawfully, and they request a chance to file for asylum instead of being deported. This can happen at the border if the person is caught while trying to enter unlawfully. It can also happen while the person is already in the country without status but has not had the chance to apply for asylum before coming to the attention of immigration authorities. If that happens, they will be placed in removal proceedings where they will have a chance to file for asylum before an immigration judge. This is called a “defensive” filing for asylum, because you are filing for asylum as a defense against the government’s efforts to deport you.
The main difference in both processes is that in the asylum office context, the process is not supposed to be adversarial, though it might often feel that way. In the asylum office, the officer is not supposed to “grill” you or try to fight against your claim for asylum. You are allowed to bring an attorney with you to support you, and the asylum officer is supposed to ask questions carefully, keeping the trauma of an asylum seeker in mind.
In the immigration court, you have the chance to present your case to a judge, whose role is much like an asylum officer in the asylum office. You are also allowed to bring an attorney to help you in immigration court, just like in the asylum office. However, there is also a third party present in immigration court who is not there in the asylum office scenario. That third party is the attorney from the Department of Homeland Security, whose job it is to fight against your case in front of the immigration judge. They can and will ask tough questions and try to show that judge that you do not qualify for asylum, even if you know you do. It is important to prepare carefully for how to answer questions before you walk into immigration court, because anything you say can be used against you, even if you think it is helping you.
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