One way to apply for asylum is referred to as an “affirmative” asylum application. This type of asylum application occurs when a person is in the United States, has not been arrested or referred to the immigration court and files an asylum application with the Department of Homeland Security (DHS) and not with the immigration court. You should discuss with your immigration lawyer whether an affirmative asylum application is right for you.
This type of application is called “affirmative” because the person is coming forward affirmatively to seek asylum and is not simply trying to defend against an ongoing removal proceeding. In contrast, a “defensive” asylum application is one where a person who has already been referred to the immigration court files an application with the immigration judge as a defense to deportation.
What happens if your affirmative application is denied?
- If you affirmatively apply for asylum, and are out of status, your case will be referred to an immigration judge for a full hearing if your application is denied. You will then have an opportunity to present your case to the judge.
- If you affirmatively apply for asylum and are in a lawful status, you will still hold your valid lawful status if your application is denied.
What happens if the immigration court denies your application?
If your asylum case is in immigration court, you will have the opportunity to present your case to the immigration judge during a formal court hearing. After your hearing, the judge will issue either an oral or written decision. If the judge does not issue a decision at the end of your hearing, you should receive it within 180 days of your hearing.
If the judge denies your asylum application, you may appeal the decision to the Board of Immigration Appeals (BIA) by filing a notice of appeal on Form EOIR-26 within thirty days of the judge’s decision. Your EOIR-26 must be received by the BIA within 30 days of the decision – simply putting it in the mail before the deadline is not enough. You should also be aware that if the judge grants you asylum, the government trial attorney can also appeal that decision within thirty days.
What if the immigration judge denies your application and you don’t appeal?
Depending on your situation, it may not be appropriate to appeal a decision of the immigration judge to deny your asylum application. At that point, you should discuss your options with your immigration lawyer.
About Kimberley Schaefer
What happens if you didn’t disclose of a previous divorce on your green card application and you reveal about it on your naturalization application?
If you previously misrepresented any facts on your permanent resident application (whether intentionally or by mistake), you should consult with an immigration attorney before you submit your naturalization application.
Depending on the specific facts of your situation, any misrepresentation on your permanent resident application potentially could have very serious immigration consequences and could result in your being placed in removal proceedings. Therefore, I strongly recommend that you discuss your case in detail with an immigration attorney before you take any action on your naturalization application.
Is it true that if I’m refused asylum they may ask me not to come back in England for 10 years?
I only practice immigration law in the United States and am unable to answer your question about English law. If you have concerns about the effect of your asylum application on your immigration options in the event that the application is denied, you should discuss your options with an immigration lawyer familiar with English law before you file your asylum application.
As you mentiond above,If I affirmatively apply for asylum and are in a lawful status, I will still hold my valid lawful status if I application is denied. After my valid lawful status is expired,can I renew it or change my status to another?
Filing an asylum application can affect your options for renewing your current visa or changing your status. You will need to discuss this issue in more detail with your immigration lawyer so that you can make an informed decision about moving forward with your asylum application.
my lawyer is gonna fill a I-589 , application for Asylum and for withholding removal form for me, so what type is my case, affirmative asylun application or ongoing removal proceeding? thank you
An affirmative asylum application is one that you file when you are not in removal proceedings (immigration court). If you file an affirmative asylum application, you should be scheduled for an interview with an Asylum Officer.
A defensive asylum application is one that you file when you are already in removal proceedings (immigration court).
If you are not sure about the what type of application your attorney is filing for you, you should discuss the issue with her so that they can explain the process to you.