| Asylum, in a general sense, is a place of refuge or protection. In terms of a country granting asylum to a national of a foreign country, the protector country has the right to offer asylum, but the foreign national does not have the right to demand asylum.
Requests for asylum are generally divided into two categories - affirmative asylum and asylum requested during removal proceedings. Affirmative asylum is when an alien applies for asylum before he or she is in removal proceedings.
After an alien arrives in the United States, he or she is eligible to apply for asylum pursuant to the Immigration and Naturalization Act (INA). The alien files the application with U.S. Customs and Immigration Services (USCIS). Application may be made at a port of entry or after the alien has been physically present in the United States for a period of time, as long as that period is not greater than one year. There is an exception to the one-year rule if the alien can show "changed circumstances" that affect the alien's current eligibility for asylum. An exception also exists if the alien can show "extraordinary circumstances" that excuse the delay in application.
Once an alien submits the application for asylum, the alien must undergo fingerprinting and background security checks. An alien also has to attend an interview with a USCIS asylum officer. The alien may bring an attorney to this interview, as well as an interpreter if the alien does not speak English. At the interview, the alien's reasons for seeking asylum are discussed and the asylum officer determines whether or not the alien meets the definition of a "refugee."
In order to be granted asylum, the alien must qualify as a "refugee" under the INA. The INA definition of a refugee states that the refugee is unable or unwilling to return to the country of his or her nationality on account of persecution or a well-founded fear of persecution or on account of race, religion, nationality, membership in a particular social group, or political opinion.
An alien seeking asylum may also request such status on behalf of his spouse and unmarried children under the age of 21 if the spouse and children are also physically present in the United States.
After the asylum officer makes a preliminary decision on whether or not to grant asylum status, the officer's supervisor reviews the decision. If the final decision is in favor of asylum, the alien is generally given a "final approval letter." A "recommended grant" may be issued, however, if there is any information outstanding from the background check.
If asylum is denied, the alien will receive notification of this fact. Asylum is not available to aliens who were previously denied asylum, unless the alien can show changed circumstances. Asylum is also sometimes denied when the alien can be sent to a third country that would also protect the alien. If the alien is denied asylum and the alien is in the United States illegally, the alien's case is referred to an Immigration Court for the commencement of removal proceedings. If the alien is in the United States legally, the alien is notified of the "intent to deny" asylum status, and he or she has one chance to respond to the notice of intent. Based on the alien's response, a final order is issued.
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