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What is Defensive Asylum?

Defensive asylum refers to the legal process that occurs when you request asylum as a defense against removal from the United States. In other words, those applying for defensive asylum are “defending” themselves from being deported by claiming asylum. In order to switch an asylum application from affirmative to defensive, the removal process of the individual must already be in effect. 

Key Takeaways

  • Defensive asylum refers to the legal process that occurs when you request asylum as a defense against removal from the United States.
  • In general, defensive asylum is usually initiated when an individual is apprehended by immigration authorities and placed into removal proceedings.
  • During removal proceedings, the individual can assert a claim for asylum as a defense against deportation. 
  • Defensive asylum is typically sought by individuals who did not apply for asylum affirmatively or who were denied asylum in their initial application.

How to Apply for Defensive Asylum

The starting point for defensive asylum occurs when the person is caught by immigration officers. This could happen at various points, such as when they cross the border or during routine immigration enforcement actions within the United States. Upon this trigger event, the process generally goes as follows:

  1. Beginning of Removal Proceedings: Once the individual is detained by authorities, they will be placed into removal proceedings. This involves being summoned to appear before an immigration judge to determine immigration status and eligibility to remain in the country.
  2. Filing a Form I-589: During removal proceedings, the individual can exercise his or her right to assert a claim for asylum as a defense against deportation. This is done by filing a Form I-589, Application for Asylum and for Withholding of Removal. This form must be filed within one year of your arrival in the United States, with certain exceptions for delays.
  3. Scheduling of Hearing and Preparation of Evidence: The immigration court will schedule a hearing where the individual will present their case for asylum. Prior to the hearing, the individual and their legal representative (if any) gather evidence to support their asylum claim. 
  4. Asylum Hearing: During the hearing, the individual appears before an immigration judge and provides testimony about their experiences and reasons for seeking asylum, and they submit any supporting evidence. 
  5. Immigration Judge Decision: After considering all the evidence and testimony, the immigration judge will make a decision on the asylum application. If the judge grants asylum, the individual will be allowed to remain in the United States and may eventually apply for permanent residency (green card) after one year. If asylum is denied, the individual may have the option to appeal the decision or may face deportation.

Bottom Line

Facing deportation and fearing persecution in your home country? Defensive asylum may be an option for you. Our experienced team can guide you through every step of the process, from filing your application to representation in immigration court. Contact Attorney At Law today for expert assistance and support.

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