Question: I want to know if some one here is illegal, can he or she submit asylum?

Answer: Yes, even if some one is illegally staying he or has become illegal, the asylum claim can be submitted. There are two ways of obtaining asylum in the United States – affirmative process and defensive process.

To obtain asylum through the affirmative process, one must be physically present in the country. The individual may apply for asylum status regardless of how he/she arrived in the United States or through their current immigration status. It must be applied within one year of the date of the last arrival in the United States, unless the individual can establish:
  • Changed circumstances that materially affect the eligibility for asylum or extra ordinary circumstances relating to the delay in filing.
  • The individual filed within a reasonable time given those circumstances.
A defensive application for asylum occurs when you request asylum as a defense against removal from the US. For asylum process to be defensive, you must be in removal proceedings in the Immigration court with the Executive Office for Immigration Review (EOIR).