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The Rights Of All Migrants

Asylum is the legal protection granted to people who have come to the United States and are afraid to return to their home country.
Asylum can be granted to people who are unable or unwilling to return to their home country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group
or political opinion.

Asylum seekers include some of the most vulnerable members of society—children, single mothers, victims of domestic violence or torture, and other individuals who have suffered persecution and trauma.

There are two primary ways in which a person may apply for asylum in the United States: the affirmative process and the defensive process.


Affirmative Asylum


Affirmative asylum is a legal process in which an individual who is physically present in the United States and not in removal proceedings proactively applies for asylum through the U.S. Citizenship and Immigration Services (USCIS), a division of the Department of Homeland Security (DHS). This process allows eligible individuals, who fear persecution in their home country based on race, religion, nationality, political opinion, or membership in a particular social group, to seek protection and refuge in the United States before an immigration judge issues a removal order.

Individuals who are not in removal proceedings have the option to apply for asylum affirmatively through U.S. Citizenship and Immigration Services (USCIS), which is a branch of the Department of Homeland Security (DHS).

If the USCIS asylum officer denies the application and the individual does not have legal immigration status, they may be referred to immigration court for removal proceedings. In this case, they have the opportunity to renew their asylum request through the defensive process and present their case before an immigration judge.


Defensive Asylum


Defensive asylum is a process through which an individual can apply for asylum as a defense against removal from the United States. It is called defensive because the individual is defending themselves against deportation by seeking protection in the form of asylum. This process involves appearing before an immigration judge in removal proceedings, presenting evidence and arguments to support their claim for asylum, and being granted asylum if the judge finds their claim to be credible and meets the requirements for asylum.

A person who is in removal proceedings may apply for asylum defensively by filing the application with an immigration judge at the Executive Office for Immigration Review (EOIR) in the Department of Justice.


In other words, asylum is applied for as a defense against removal from the U.S. Unlike the criminal court system, EOIR does not provide appointed counsel for individuals in immigration court, even if they are unable to retain an attorney on their own.


Asylum seekers who arrive at a U.S. port of entry or enter the United States without inspection generally must apply through the defensive asylum process. Both application processes require the asylum seeker to be physically present in the United States.

Is There a Deadline for Asylum Applications?

An individual generally must apply for asylum within one year of their most recent arrival in the United States. In 2018, a federal district court found that  DHS is obligated to notify asylum seekers of this deadline in a class-action lawsuit that challenged the government’s failure to provide asylum seekers adequate notice of the one-year deadline and a uniform procedure for filing timely applications.

Meeting the one-year deadline for asylum seekers in both the affirmative and defensive processes can be challenging due to various obstacles. Traumatic experiences during detention or the journey to the United States may prevent individuals from being aware of the deadline. Additionally, systemic barriers like lengthy backlogs can make it difficult for asylum seekers to file their application on time, resulting in the denial of their application solely based on missing the deadline.

What Happens to Asylum Seekers Arriving at the U.S. Border?

From 2004 through 2019, DHS subjected almost all noncitizens who were encountered by, or presented themselves to, a U.S. official at a port of entry or near the border to expedited removal, an accelerated process which authorizes DHS to perform rapid removal of certain individuals.

To help ensure that the United States does not violate international and domestic laws by returning individuals to countries where their life or liberty may be at risk, the credible fear and reasonable fear screening processes are available to asylum seekers in expedited removal processes. Importantly, while the process described below is how asylum seekers should be processed under law, at times CBP officers do not properly follow this process. Additionally, CBP officers sometimes subject asylum seekers to various new policies created by the Trump administration in 2019 and 2020 which are described in greater detail below.

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