Affirmative Asylum

I’ve suddenly realized that when I wrote that I was favorably predisposed towards accepting refugees as long as the asylum-seekers were detained while their applications were reviewed, some of those who support our accepting more refugees must have thought I was daft. I was referring, of course, to affirmative asylum. Here’s how the U. S. Civilization and Naturalization Services characterizes “affirmative asylum”:

To obtain asylum through the affirmative asylum process you must be physically present in the United States. You may apply for asylum status regardless of how you arrived in the United States or your current immigration status.

You must apply for asylum within one year of the date of their last arrival in the United States, unless you can show:

Changed circumstances that materially affect your eligibility for asylum or extraordinary circumstances relating to the delay in filing
You filed within a reasonable amount of time given those circumstances.
You may apply for affirmative asylum by submitting Form I-589, Application for Asylum and for Withholding of Removal, to USCIS. See Form I 589, Application for Asylum and for Withholding of Removal for instructions on how to file for asylum,.

If your case is not approved and you do not have a legal immigration status, we will issue a Form I-862, Notice to Appear, and forward (or refer) your case to an Immigration Judge at the Executive Office for Immigration Review (EOIR). The Immigration Judge conducts a ‘de novo’ hearing of the case. This means that the judge conducts a new hearing and issues a decision that is independent of the decision made by USCIS. If we do not have jurisdiction over your case, the Asylum Office will issue an I-863, Notice of Referral to Immigration Judge, for an asylum-only hearing. See ‘Defensive Asylum Processing With EOIR’ below if this situation applies to you.

Affirmative asylum applicants are rarely detained by U.S. Immigration and Customs Enforcement (ICE). You may live in the United States while your application is pending before USCIS. If you are found ineligible, you can remain in the United States while your application is pending with the Immigration Judge. Most asylum applicants are not authorized to work.

The emphasis is mine. In other words, the process for seeking affirmative asylum goes like this:

  • You arrive in the United States, by any means, legal or illegal.
  • You apply for asylum.
  • You’re released on your own recognizance.
  • A year and a half later, you receive a determination.

Doesn’t sound quite as daft when you know that’s what I’m talking about, does it?

How common is affirmative asylum? About 3/5s of those who’ve been granted asylum applied that way. Many immigration attorneys advise people to seek asylum that way.

5 comments… add one
  • steve Link

    Reading it over I notice a couple of things. First, there are not enough refugees from Syria in this program to merit listing Syria as a separate country. Second, if i am reading this correctly, it starts with a meeting with an officer who determines if you are a credible refugee. If you are perceived as a national security threat, you don’t automatically qualify. Not enough details, but I suspect this means they don’t release you to wander around the country.

    Steve

  • PD Shaw Link

    Asylum and refugee are two different concepts. People seeking asylum are already in the U.S. and are seeking to stay or resist deportation. In 2013, half of all asylum-seekers were from China (34 percent), Egypt (14 percent), Ethiopia (3.5 percent), Nepal (3.4 percent), and Syria (3.2 percent). Dave is correct that they can enter the country illegally, but I would assume most traveled here by plane legally, and don’t want to return. The Tsarnaev family came to the U.S. on a tourist visa and then applied for asylum, and thus are not refugees.

    Refugees are processed overseas, and if their application is granted, the U.S. transports you to the U.S. at its cost, but the cost of transportation is a loan that is supposed to be repaid. I have not found any documentation on loan-repayment rates. Seventy-five percent of refugees admitted to to the U.S. were from Iraq (28 percent), Burma (23 percent), Bhutan (13 percent), and Somalia (11 percent). The Iraqi applications are mostly being processed in Baghdad, and some of these others may be in adjoining countries. The number of refugees that can be admitted are subject to total caps (70,000 in 2015) and regional (33,000 in Near East/South Asia).

  • steve Link

    PD- I am not seeing anything here that says they automatically get to wander around free while they are being processed and it seems clear not everyone is granted asylum.

    Steve

  • steve:

    How do you interpret the bolded sentence above?

  • steve Link

    Reading over online comments and asylum sites, it looks like most ofvyhose seeking asylum come here legally and have reasonable cases for asylum_, so they don’t hold them anywhere. There ate also plenty of complaints from people who came here illegally who are being held in detention.

    So how does this apply to refugees? A refugee has to go through a 2 year process to get here. What we should be worried about are people coming here on visas. Even then, if you were a jihadist and here on a visa, would you bother applying for asylum? Why risk exposure by an investigation?

    Steve

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