Can I Apply for Asylum If I’m Not Legally in the U.S.?

You can still apply for asylum if you are in the United States illegally. Immigration law provides for two general types of asylum processing: defensive asylum processing and affirmative asylum processing.

Asylum and Defensive Processing

Defensive processing can be invoked when you are subject to removal proceedings because you are in the U.S. illegally. In essence, you are defending an involuntary removal with the explanation of why you cannot return to your native country. The court that hears your asylum application will provide you with a qualified interpreter. The court will listen to any evidence or information that you or your immigration attorney would like to present in connection with your asylum application. An attorney for the U.S. government will present evidence or arguments opposing your application. The immigration judge will then decide whether to approve your application. If your asylum application is denied, then the judge will order your removal.

Asylum and Affirmative Processing

The second type of asylum is called affirmative processing. This type of asylum is for persons who are already in the United States or port of entry – even those that are illegally in the United States. You must file your asylum application within one year of your last entry. Immigration laws do provide for some limited exceptions to this deadline. If you are in the U.S. illegally and wish to seek asylum, you should consult with an immigration attorney to see which options and exceptions apply to your situation. Usually, you will not be detained or in custody while your asylum application is pending. Affirmative processing is usually described as non-adversarial. However, if your application is denied and you do not qualify for legal status through another program, you could become subject to removal proceedings, which are adversarial. If you are placed in removal proceedings, your affirmative asylum application will follow you to the removal proceedings. The affirmative application can then be converted to a defensive asylum application. Essentially, you will get two opportunities to have your application heard.

If your application for asylum is denied, you may also be able to appeal the court’s decision or request that your case be reopened because of new information or a change in your circumstances. You should consult with an attorney who specializes in immigration law to see which process is best to seek a review in your situation.

Case Studies: Exploring Asylum Application Processes for Individuals Not Legally in the U.S.

Case Study 1: Defensive Asylum Processing

Anna, who entered the United States illegally, finds herself in removal proceedings. She invokes defensive asylum processing, presenting her case in court to explain why she cannot return to her native country. The immigration judge evaluates Anna’s asylum application and determines whether it should be approved. If denied, she may face removal.

Case Study 2: Affirmative Asylum Processing

Carlos, an individual residing in the United States illegally, decides to pursue affirmative asylum processing. He files an asylum application within one year of his last entry, seeking protection based on persecution in his home country. Carlos does not face immediate detention while his application is pending. If approved, he may be granted legal status. If denied, he may be placed in removal proceedings.

Case Study 3: Appeal and Reopening of Asylum Case

Sophia’s asylum application is denied, but she believes there are grounds for appeal or reopening of her case due to new information or a change in circumstances. She consults with an immigration attorney to determine the best course of action for seeking a review of her case.