If the individual can establish that she was persecuted in the past, future persecution will be presumed. However, the U.S. government can rebut that presumption in one of two ways: (i) there has been a fundamental change in the circumstances such that the individual no longer has a well-founded fear of persecution because the regime in power in individual’s home country that ruled when she entered U.S.A is no more in power and has been replaced by another regime that is not likely to persecute her); or (ii) the individual can avoid future harm by relocating to another part of country.
It may seem easier to present the above grounds but in practice the elements needed to gain asylum are often difficult to establish.
There are two ways of obtaining asylum in the United States; (i) through the affirmative process and, (ii) defensive process.
Affirmative Asylum Process (with USCIS)
To obtain asylum through the affirmative asylum process individual must be physically present in the United States and must apply for asylum status regardless of how she arrived in the United States or her current immigration status. She must apply for asylum by submitting Form I-589 within one year of the date of her last arrival in the United States, unless she can establish (i) changed circumstances that materially affect her eligibility for asylum or extraordinary circumstances relating to the delay in filing or (ii) she filed within a reasonable amount of time given those circumstances.
If her case is not approved and she does not have a legal immigration status, USCIS will issue a Form I-862, Notice to Appear, and forward her case to an Immigration Judge at the Executive Office for Immigration Review (EOIR). The Immigration Judge conducts a ‘de novo’ hearing of the case. This means that the judge conducts a new hearing and issues a decision that is independent of the decision made by USCIS. Affirmative asylum applicants are rarely detained by U.S. Immigration and Customs Enforcement (ICE). Individual may live in the United States while her application is pending before USCIS. If she is found ineligible, she can remain in the United States while your application is pending with the Immigration Judge. Most asylum applicants are not authorized to work.
Defensive Asylum Process (with EOIR)
A defensive application for asylum occurs when individual requests asylum as a defense against removal from the U.S because she is in removal proceedings in immigration court with the Executive Office for Immigration Review (EOIR).
Individual is generally placed into defensive asylum processing in one of two ways;
• She is referred to an Immigration Judge by USCIS after she has been determined to be ineligible for asylum at the end of the affirmative asylum process, or
• She is placed in removal proceedings because she:
- was apprehended (or caught) in the United States or at a U.S. port of entry without proper legal documents or in violation of their immigration status, OR
- was caught by U.S. Customs and Border Protection (CBP) trying to enter the United States without proper documentation, was placed in the expedited removal process, and was found to have a credible fear of persecution or torture by an Asylum Officer.
Immigration Judges hear defensive asylum cases in adversarial proceedings. If found eligible; the Immigration Judge will order asylum to be granted. If found ineligible for asylum; the Immigration Judge will determine whether the individual is eligible for any other forms of relief from removal. If found ineligible for other forms of relief; the Immigration Judge will order the individual to be removed from the United States. The Immigration Judge’s decision can be appealed by either party.
