Terry R. Hunt

Asylum - Request During Removal Proceedings

Asylum

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. There are two types of asylum - affirmative asylum and asylum requested after removal proceedings are commenced against an alien.

If removal proceedings have been commenced, the alien has to make the application for removal to the immigration judge handling the removal proceeding. There are various reasons why an alien in the United States might be subject to removal. This includes violation of the alien's status of entry. Some aliens who are subject to removal may find relief from removal through a grant of asylum. This occurs when an alien's life or freedom would be threatened in the country to which he or she was being removed.

Types of Removal

Regular

There are two types of removal - "regular" and "expedited." In a regular removal, the alien is in the United States and removal proceedings are commenced against him or her in front of an immigration judge. Certain procedural formalities must be followed, such as written notice and a hearing. In such a proceeding, the alien may apply for asylum in the same manner (by using the same forms) as the alien would have applied had the removal proceedings not been initiated. If asylum is denied, the alien may seek review with the Board of Immigration Appeals.

If an alien is subject to an order of removal, in certain situations he or she may file a motion to reopen the order on the basis of an asylum claim. This may be done where the circumstances in the country to which the alien was ordered removed have changed. If this is the case, there is no time limit on filing a motion to reopen. The evidence of a change in circumstances must be material and it must not have been available, discoverable, or presented during the removal proceeding.

Expedited

An expedited removal applies to aliens arriving at U.S. ports of entry without documents or with fraudulent documents. For these aliens, they are immediately removed from the United States, without notice or a hearing, unless they announce their intent to apply for asylum or a general fear of persecution in their country of origin. The alien's case must be referred to an asylum officer at that point for a determination of the alien's "credible fear" of persecution. If the alien is found to have a credible fear, then he or she must go through regular removal proceedings, during which the alien can raise the issue of asylum. If the alien is found not to have a credible fear, the decision may be reviewed upon request by the alien within seven days. If the final decision is that the alien does not have a credible fear, the alien is detained and removed.