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.