Asylum: Defensive vs Affirmative

Asylum: Defensive vs Affirmative

Asylum: Defensive vs Affirmative

An asylum is a form of protection that allows an individual to remain in the United States instead of being removed to a country of feared persecution. There are two paths to asylum in the U.S.: the affirmative asylum process for individuals who are not in removal proceedings, and the defensive asylum process for individuals who are in removal proceedings.

What is Affirmative Asylum?

A person who is not in removal proceedings may proactively apply for asylum with the USCIS. An applicant may file an affirmative application for asylum if he or she currently holds a valid immigration status (such as a visitor or student visa or Temporary Protected Status), his or her status has lapsed or expired (except for Visa Waiver Program entrants), or even if he or she holds no immigration status (for example, if he or she entered the country without inspection).

To obtain asylum through the affirmative asylum process, the applicant must be physically present in the United States and apply for asylum within one year of their last arrival in the United States.

What is Defensive Asylum?

A defensive application for asylum occurs when an applicant requests asylum as a defense against removal from the United States. For asylum processing to be defensive, a person must be in removal proceedings in immigration court with the Executive Office for Immigration Review (EOIR).

Individuals are generally placed into defensive asylum processing in one of two ways:

  • They are referred to an immigration judge by USCIS after they have been determined to be ineligible for asylum at the end of the affirmative asylum process, or
  • They are placed in removal proceedings because they:
    • Were apprehended in the United States or at a U.S. port of entry without proper legal documents or in violation of their immigration status; or
    • Were apprehended by U.S. Customs and Border Protection (CBP) trying to enter the United States without proper documentation, were placed in the expedited removal process, and were found to have a credible fear of persecution or torture by an asylum officer.

An immigration judge hears defensive asylum cases and then decides whether an applicant is eligible for asylum or not.


Source: USCIS | National Law Review