In the affirmative asylum process, individuals who are physically present in the United States, regardless of how they arrived in the U.S. and regardless of their current immigration status, may apply for asylum. They do so by submitting an application to the Asylum Office with 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.
Defensive Asylum before the Immigration Courts
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 the Judge by the Asylum Officers 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