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Legal Guide to Different Types of Asylum in the U.S.

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Lia Kopin-Green
April 3, 2024
Last reviewed by
Joanna Smykowski
April 3, 2024

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In today's world, seeking asylum can be a daunting task. This is especially true for those facing imminent persecution in their home countries. Fortunately, the United States offers various avenues of protection for individuals in need. While affirmative asylum and defensive asylum are the two main types of asylum applications available in the United States, there are other types of relief offered to those who fear persecution in their state of origin. In this informative legal guide guide, we break down the ins and outs of each common type of protection available in the United States.

Affirmative Asylum

Affirmative asylum is a type of asylum request made by individuals who are already physically present in the United States. Applications for affirmative asylum are submitted through the United States Citizenship and Immigration Services (USCIS) via a Form I-589. If granted asylum, individuals can apply for a green card (permanent residency) one year after receiving asylum status. Alternatively, if asylum is denied, the applicant is referred to removal proceedings, where he or she may request defensive asylum and appear before an immigration judge. It should be noted that “unaccompanied children” may also apply for affirmative asylum, even if they are already in removal proceedings.

Defensive Asylum 

Defensive asylum refers to the legal process that occurs when you request asylum as a defense against removal from the United States. In order to switch an asylum application from affirmative to defensive, the removal process of the individual must already be in effect. In most cases, the starting point for defensive asylum occurs when the person is caught by immigration officers. This could happen at various points, such as when they cross the border or during routine immigration enforcement actions within the United States. Afterwards, the individual is given the opportunity to file for asylum to prevent their deportation back to their country of origin.

Withholding of Removal

Although withholding of removal is typically referred to in the discussion of asylum, it is important to note that it constitutes a separate legal status and process. Withholding of removal is a legal remedy provided to foreign nationals who are in the United States and meet the criteria for asylum, but may not qualify for asylum due to various factors. There are several aspects that set withholding of removal apart from asylum. Withholding of removal has a higher burden of proof in comparison to asylum. In order to qualify for withholding of removal, the individual must show it is “more likely than not” that they would face persecution in their country of origin. Further, withholding of removal does not offer a pathway to permanent residence. Individuals generally apply for both withholding of removal and asylum simultaneously on Form I-589.

Asylum for Children

The process for applying for asylum is different for asylum seekers under the age of 18. Asylum seekers designated as “unaccompanied children” can apply for asylum through the United States Citizenship and Immigration Services (USCIS). While most applicants are required to apply for asylum within one year of arriving in the United States, this rule does not apply to unaccompanied children. Asylum seekers under 18 who are not considered unaccompanied children may still apply for asylum either through a parent or guardian’s application or independently. Since specific laws and regulations often differ for those under 18, it is recommended to consult with an attorney for personalized guidance in these cases.

Convention Against Torture (CAT) Protection

Protection under the Convention Against Torture (CAT) is available to individuals who fear being tortured if returned to their home countries. In order to qualify for CAT protection, similar to the burden of proof required in withholding of removal, individuals must demonstrate that it is more likely than not that they would be tortured if returned to their home country. Moreover, you must demonstrate that the harm you fear meets the definition of torture under the CAT. The convention describes torture as “any intentional unlawful infliction of severe physical or mental suffering or pain, with consent of a public official, for purposes such as punishment, obtaining a confession, intimidation, or discrimination.”

Although both CAT and asylum provide relief for individuals fearing persecution or torture, they represent distinct legal processes with unique advantages and disadvantages. However, keep in mind that you can apply for CAT protection at the same time as you apply for asylum using Form I-589.

Temporary Protected Status (TPS)

Temporary Protected Status (TPS) is a temporary immigration status granted to eligible individuals from certain countries experiencing ongoing armed conflict, environmental disasters, or other extraordinary and temporary conditions. It is critical to note that while TPS is often considered a type of asylum process, an application for TPS does not affect an application for asylum or any other immigration benefit and vice versa. In other words, if you have been denied asylum, it may be a good idea to try applying for TPS if your circumstances fit the necessary requirements. TPS provides temporary relief for a period of up to 18 months, which can be renewed.

Bottom Line

If you or someone you know is seeking asylum in the United States, it is crucial to understand the different types of asylum available and the specific requirements for each type. The asylum process can be complex and overwhelming, especially when navigating the legal system alone. At Attorney At Law, we are committed to protecting the rights and well-being of asylum seekers. Don’t hesitate - schedule a consultation today with an immigration attorney in your area.

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