Affirmative vs Defensive Asylum: Knowing the Differences

There are two main paths when seeking asylum in the United States. They are affirmative asylum and defensive asylum. Each has its own process and rules.  

Continue reading to know their differences and the right one for you. 

What is Affirmative Asylum vs. Defensive Asylum? 

Here’s a simple way to look at it: 

Affirmative asylum is when you apply before you’re facing deportation. Defensive asylum is when you apply to stop deportation. 

Now, let’s examine each one. 

Affirmative Asylum  

Affirmative asylum is for people not in removal proceedings. You can apply as long as you’re physically in the U.S., regardless of how you entered or what your current immigration status is. 

Who handles it? 

The U.S. Citizenship and Immigration Services (USCIS), a division of the Department of Homeland Security (DHS). 

The process: 

1. File Form I-589This is the Application for Asylum and for Withholding of Removal.
    

1. Fingerprinting & Background ChecksUSCIS sends you two notices: one to confirm receipt and one for your fingerprint appointment. If you’re including your spouse or children, they also need to attend this appointment.
    

1. InterviewYou’ll meet with a USCIS asylum officer. Bring your spouse and children if they’re part of your case. The interview often lasts about an hour.
    

1. DecisionMost applicants receive a decision about two weeks later. Sometimes it takes longer, especially if you’re waiting for security checks or your case is under further review. 

Time limits 

You generally must apply within one year of your last entry to the U.S. There are exceptions for: 

1. Changed circumstances affecting your eligibility. 

1. Extraordinary circumstances that delayed your filing. 

And you must file within a reasonable time after those circumstances. 

Defensive Asylum 

Defensive asylum is for people in removal proceedings. This means the U.S. government has started the process to deport you, and you’re now asking for asylum as a defense. 

Who handles it? 

An immigration judge at the Executive Office for Immigration Review (EOIR) in the Department of Justice. 

The process: 

1. Master Calendar HearingThis is your first hearing. The judge goes over the charges and asks if you fear returning to your home country. Be careful, so you don’t claim false facts.
    

1. Individual or Merits HearingThis is your big day. You share your story, submit evidence, and may bring witnesses. A DHS trial attorney will be there, too.
    

1. DecisionSometimes the judge decides immediately. Other times, you wait.
    

1. AppealsIf you lose, you or the Department of Homeland Security (DHS) can appeal to the Board of Immigration Appeals (BIA). You usually have 30 days to file.
    

Barriers to Applying for Asylum 

Not everyone can apply. You may be barred if you: 

1. Missed the one-year filing deadline without a valid exception. 

1. Had a previous asylum application denied by a judge or the BIA. 

1. Can be removed to a safe third country under a U.S. agreement. 

Affirmative vs Defensive Asylum 

Here’s a summary of the dissimilarities in both forms of Asylum: 

Who applies? 

• Affirmative: People not in removal proceedings. 

• Defensive: People in removal proceedings. 

Where do you file? 

• Affirmative: With USCIS. 

• Defensive: With an immigration judge at EOIR. 

Purpose? 

• Affirmative: You’re asking for asylum on your own. 

• Defensive: You’re using asylum to stop deportation. 

Interview vs. Hearing 

• Affirmative: Private interview with an asylum officer. 

• Defensive: Formal court hearing with a judge and government attorney. 

Affirmative/Defensive Asylum Application Checklist 

Here’s a list of things to have for a successful asylum application, no matter which process you follow: 

1. Form I-589 

1. Evidence of persecution or fear of returning home, like documents, photos, and affidavits. 

1. Identification documents, such as a passport, birth certificate, etc. 

1. Fingerprints and background checks 

1. Interpreter, if you’re not fluent in English 

1. Immigration Attorney (not mandated but recommended) 

You have a right to a lawyer, but the U.S. government doesn’t give you one. Go to ImmigrationQuestion.com to hire a licensed immigration attorney. 

When to Get Help 

If USCIS denies your affirmative asylum, they may refer your case to an immigration judge. That’s when your case becomes defensive. 

The process is complex. It is best to hire an experienced immigration attorney who can help with filing your forms, preparing you for interviews, and representing you in court. Head over to ImmigrationQuestion.com today to get started. 

FAQs :

1. What is affirmative asylum vs. defensive asylum?

Affirmative asylum is when you apply for asylum while you’re not in removal proceedings. You file with USCIS and attend an interview with an asylum officer. Defensive asylum is when you ask for asylum as a defense against deportation in front of an immigration judge. 

2. Who can apply for affirmative asylum?

Anyone physically present in the U.S. can apply for affirmative asylum, no matter how they entered or their current immigration status. Most applicants must file within one year of their last arrival unless they qualify for an exception. 

3. Is USCIS in charge of Asylum?

USCIS handles affirmative asylum, while immigration judges at the Executive Office for Immigration Review are in charge of defensive asylum. 

4. Can I apply for affirmative and defensive asylum?

If your affirmative asylum is denied, USCIS may refer your case to an immigration judge. At that point, you can apply for defensive asylum. 

5. Which form do I use for defensive asylum?

Both processes use Form I-589, Application for Asylum and for Withholding of Removal. 

6. Do I get a lawyer for my asylum case?

You have a right to a lawyer in both processes, but the U.S. government does not provide one. You’ll need to hire an attorney or find a pro bono legal service. 

7. What happens if I don’t file for asylum within one year?

You may still qualify if you can prove changed or extraordinary circumstances that caused the delay. Just make sure you file within a reasonable time after those circumstances. 

8. Which is better, affirmative or defensive asylum?

Neither is “better.” The process depends on your situation. If you’re not in removal proceedings, you apply affirmatively. If you’re already in removal proceedings, you apply defensively.