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Immigration Lawyer in Colorado: Understanding Affirmative Asylum

Every year, many individuals either arriving at our borders or already present in the United States seek asylum, which is a form of protection from persecution in their home country. The process of seeking asylum entails navigating a challenging and complex system. Many asylum seekers have valid reasons to fear returning home, but only a small percentage will qualify as asylum seekers, as the law narrowly defines the term and requires stringent proof before a petition is approved.

The number of approved asylum petitions in the United States varies from one U.S. administration to the next, and from one year to the next. In 2020, for example, there were approximately 30,964 asylum cases approved, while in 2021 - only 17,692. However, hundreds of thousands of people seek asylum each year.

While many asylum applications are filed with an immigration judge at the Executive Office for Immigration Review (EOIR) in the Department of Justice as a defense against removal from the United States, a person who is not in removal proceedings may affirmatively apply for asylum through U.S. Citizenship and Immigration Services (USCIS). 

As of April 1, 2022, there were 470,786 affirmative asylum applications pending with USCIS.

While winning asylum is difficult, asylum seekers who are represented by an attorney have much better odds of winning asylum. If it is your (or your loved one's) life and safety at risk by returning to your home country, you want to make sure you are represented by a competent immigration attorney. At Lear Immigration Law, PC, our asylum attorney effectively handles affirmative asylum applications and will do the same for you. Contact us today at (303) 578-9083 to schedule a Zoom or In-Person Consultation.

Understanding the Asylum Process in the United States

The asylum process in the United States offers protection to individuals who have fled their home country and are unable to return due to a fear of persecution. 

To qualify for asylum, a person must be a refugee and must be physically in the United States when they apply for this form of protection. Section 101(a)(42) of the Immigration and Nationality Act (INA) defines a refugee as someone who is unable to return to their home country due to persecution or a fear of persecution based on their:

  • Race
  • Religion
  • Nationality
  • Membership in a particular social group
  • Political opinion

Persecution is usually physical, but it can also be emotional or psychological.

There are two pathways to applying for asylum in the United States. 

  1. If you're in the United States and not subject to removal (deportation) proceedings, you can proactively apply for affirmative asylum. 
  2. If removal proceedings have already been started against you in immigration court, you can apply for defensive asylum. 

You can file for affirmative asylum regardless of your immigration status in the United States—whether you hold another temporary visa like a student visa, your immigration status has lapsed or expired, or you entered the United States without inspection.

The asylum process is a pathway to permanent residency. You can apply for a green card one year after being granted asylum. 

How to File for Affirmative Asylum

To apply for affirmative asylum, you must be present in the United States or at a port of entry. You can remain in the United States while your application is being processed. 

Form I-589

To start an affirmative asylum application, you must complete and file a Form I-589, Application for Asylum and for Withholding of Removal with the U.S. Citizenship and Immigration Services (USCIS). 

This must be done within one year of your arrival in the United States. There are some limited exceptions to this timeframe, such as where your circumstances have changed affecting your eligibility for asylum or extraordinary circumstances caused the delay. USCIS should send you confirmation of receipt of your application within 30 days but practically speaking, the receipt notice may take months to arrive.

Biometrics Appointment

In addition to confirmation that your application has been received, USCIS will also send you a biometrics appointment notice. You must attend an application support center on your allocated day for your fingerprints to be taken. 

Asylum Appointment

After providing your fingerprints, you will receive a notice of your appointment with USCIS at one of its offices. You can bring an attorney or accredited representative, an interpreter, and your spouse and children to the appointment (if they are applying for derivative asylum). 

Under the INA, an asylum interview should be conducted within 45 days of an application being filed. In reality, waiting for an interview would take months, if not years.

USCIS Decision

A USCIS officer then decides whether you have a legitimate asylum claim. Under the INA, an affirmative asylum application should be decided within 180 days of an application being filed, unless exceptional circumstances exist. However, it's not uncommon for decisions to take longer. 

Immigration Court

If asylum is not granted, USCIS will refer your matter to an immigration court to decide. In this situation, you become a defensive asylum seeker. 

Challenges to Affirmative Asylum

The affirmative asylum process is complex. Here are some common challenges applicants face. 

  • Nature of the immigration legal system. Immigration laws are constantly changing, especially following changes in government. Recently, significant and rapid changes were made to the asylum application process in response to the COVID-19 pandemic. 
  • Serious penalties for fraud. It is essential you complete your asylum application truthfully. If you make a fraudulent asylum application or lie about an important fact, the court may find you have made a “frivolous” application. This can result in a lifetime ban from applying for any U.S. immigration benefits. 
  • Length of process. Despite the timeframes under the INA, the volume of applications and the COVID-19 pandemic have created a large backlog of affirmative asylum applications and lengthy wait times for decisions. 
  • Proving date of entry. If you entered the United States without inspection (for example, by illegally crossing the border), it can be difficult to prove your entry date and show you are applying within the one-year time frame. 
  • Risk of removal. If an immigration court rejects your asylum claim, and you do not hold any other valid status or parole, the court can order your removal from the United States. These orders typically prevent you from returning to the United States for several years. It also places you at risk of being returned to the country you fled from. 

An asylum immigration lawyer can assist you with your affirmative asylum application and help you navigate these potential challenges. 

Asylum and Refugee FAQ (Frequently Asked Questions)

Contact an Immigration Lawyer Today 

Asylum is the protection you deserve if you have faced persecution or have a well-founded fear of facing persecution upon returning to your home country. Our firm can help you make sure you put forth your best effort to get this protection. Contact Lear Immigration Law, P.C. today by filling out the online form or calling us at (303) 578-9083 to schedule a Zoom or In-Person Consultation.