Defensive Asylum vs. Affirmative Asylum

Defensive asylum and affirmative asylum are two distinct processes for applying for asylum in the United States. The primary difference between the two lies in when and where the asylum application is made and the associated legal proceedings. Here's a breakdown of the key differences:
Affirmative Asylum:
  • Timing: Affirmative asylum is the process for individuals who are not in removal proceedings. It's typically used by people who arrive in the United States and proactively apply for asylum within one year of their entry or arrival.
  • Application Venue: Asylum seekers submit their applications with the U.S. Citizenship and Immigration Services (USCIS), which is a part of the Department of Homeland Security (DHS).
  • Interview: After the application is submitted, the applicant will be scheduled for an asylum interview with a USCIS asylum officer. During the interview, the applicant presents their case and provides supporting evidence.
  • Decision: The asylum officer will determine whether the applicant is eligible for asylum. If granted, the applicant is allowed to stay in the United States as an asylee.
  • Appeal: If the asylum application is denied, the case may be referred to immigration court for removal proceedings, and the applicant can continue to seek asylum as a defense against deportation.
Defensive Asylum:
Defensive asylum is a type of asylum application in the United States that occurs when an individual seeks asylum as a defense against removal (deportation) from the country. Here’s an overview of the defensive asylum application procedure:
  • Initiation of Removal Proceedings :

    Defensive asylum cases begin when the U.S. government initiates removal proceedings against an individual. This typically happens if the person is apprehended by immigration authorities or if they were already in removal proceedings for another reason and decided to seek asylum as a defense.

  • Filing the Asylum Application :

    The individual must submit Form I-589, Application for Asylum and for Withholding of Removal, to the immigration court handling their case. This form is used to apply for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).

  • Immigration Court Hearings:

    The case will be heard by an Immigration Judge (IJ) in an immigration court. There are several types of hearings that may occur:

    • Master Calendar Hearing : An initial, brief hearing where procedural matters are addressed. The applicant confirms their intention to apply for asylum, and future hearing dates are set.
    • Individual Hearing : A longer, more detailed hearing where the applicant presents their case for asylum. This includes testimony, submission of evidence, and arguments from the applicant’s attorney (if they have one) and the government’s attorney.
  • Testimony and Evidence :
    • During the individual hearing, the applicant must demonstrate that they meet the definition of a refugee, showing that they have a well-founded fear of persecution in their home country based on race, religion, nationality, membership in a particular social group, or political opinion.
    • The applicant can provide testimony, submit documents, and present witnesses to support their claim. The government attorney can cross-examine the applicant and present evidence against the claim.
  • Decision by the Immigration Judge :

    After considering all the evidence and arguments, the Immigration Judge will issue a decision. If the judge grants asylum, the applicant can stay in the U.S. and eventually apply for a green card. If the judge denies asylum, the applicant may be ordered removed from the U.S.

  • Appeal Process :
    • If asylum is denied, the applicant can appeal the decision to the Board of Immigration Appeals (BIA). If the BIA upholds the denial, the applicant can further appeal to the federal courts.
    • During the appeal process, the applicant may remain in the U.S. until a final decision is made.
  • Final Outcomes :
    • If granted asylum, the individual is allowed to remain in the U.S., obtain employment authorization, and eventually apply for lawful permanent resident status.
    • If denied and all appeals are exhausted, the individual may be deported from the U.S.
The defensive asylum process is complex and involves legal representation, substantial documentation, and significant preparation for court hearings. Applicants are encouraged to seek assistance from experienced immigration attorneys or accredited representatives.
In summary, the key difference between affirmative and defensive asylum is the timing and venue of the application. Affirmative asylum is for those who proactively apply for asylum with USCIS before entering removal proceedings, while defensive asylum is for those who apply for asylum as a defense against deportation in immigration court after they are already in removal proceedings. The legal standards for asylum eligibility are the same in both processes, but the procedures and the government agencies involved differ.

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