Attorney at Law

Guide on How to Obtain Defensive Asylum

Lia Kopin-Green
April 3, 2024
Last reviewed by
Joanna Smykowski
April 3, 2024

Seeking defensive asylum in the United States can be a daunting and complex process, especially when faced with the threat of deportation. If you are in removal proceedings and fear returning to your home country due to persecution or harm, you may be eligible to apply for defensive asylum as a form of protection. In this legal guide, we will provide a step-by-step guide on how to apply for defensive asylum in the United States.

1. Determine Your Asylum Pathway

Before embarking on your journey to defensive asylum, make sure it is the correct route for your specific circumstances. There are two main pathways to obtaining asylum in the United States: the affirmative asylum process and the defensive asylum process.

The affirmative asylum process is for those who are submitting a request for asylum from within the United States, regardless of how they arrived in the country. Their asylum applications are filed within one year of arriving in the U.S.

Alternatively, defensive asylum is sought by individuals who were denied through the affirmative process, or have been detained for removal by Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP). This process occurs when an individual requests asylum as a defense against removal from the United States. 

As you can see, the process for seeking asylum in the United States differs depending on whether you are applying for affirmative asylum or defensive asylum. Each path has its own unique requirements, procedures, and challenges.

2. Beginning of Removal Proceedings

After thinking it over and talking with an immigration lawyer, you may have decided that defensive asylum is the best option for you. The process officially begins when you are caught by immigration officers. Once detained, you will be placed into removal proceedings by the Department of Homeland Security (DHS). This involves being summoned to appear before an immigration judge to determine immigration status and eligibility to remain in the country. During these intensive legal proceedings, your immigration status, circumstances, and eligibility to remain in the country will be adjudicated before an immigration judge.

Simply put, in order to initiate the defensive asylum process, you must be in removal proceedings in immigration court with the Executive Office for Immigration Review (EOIR).

3. File Your Asylum Application

During removal proceedings, it is important to keep in mind that you can exercise your right to assert a claim for asylum. In these cases, asylum will serve as your defense against deportation from the U.S. This is achieved by filing a Form I-589, also known as an  Application for Asylum and for Withholding of Removal. You may be required to submit supporting documents alongside your application, such as proof of identity, proof of persecution and travel documents. 

It should be noted that in some exceptional cases, you may be able to base your application on a “positive credible fear determination,” in which a Form I-589 may be deemed unnecessary. Other elements of your application may vary as well, so it is essential to seek the guidance of a professional immigration attorney during the application filing process.

4. Attend the Master Calendar Hearing

During the defensive asylum application process, you must attend a preliminary hearing known as a Master Calendar Hearing. Prior to the hearing, you will receive a document called a Notice to Appear (NTA), that will include the specific time, date, and location of your Master Calendar Hearing. In this hearing, the immigration judge may ask various questions to determine whether you qualify to remain in the United States under asylum, withholding of removal, or protection under the Convention Against Torture. It should be noted that it is critical to attend your Master Calendar Hearing, as failing to appear before the immigration judge can result in deportation without any further proceedings. It is generally advised to attend your Master Calendar Hearing along with your immigration attorney. 

5. Attend the Asylum Hearing (Individual Hearing or Merits Hearing)

At this hearing, you will be requested to give testimony under oath and answer questions regarding your asylum application. If you have any witnesses, they should also attend this meeting. The immigration judge will typically issue a decision on your asylum claim at the end of the hearing or shortly after it. Given the high stakes involved, it's normal to feel anxious or nervous about your asylum hearing. However, remember that you have the right to present your case and that your attorney will be there to guide and support you throughout the process.

6. Appeals Processes

If your defensive asylum claim is denied by the immigration judge, you have the right to appeal the decision to a higher court. The appeals process for defensive asylum cases is handled by the Board of Immigration Appeals (BIA), which is part of the Executive Office for Immigration Review (EOIR). The appeals process typically involves filing a notice of appeal (Form EOIR-26) and submitting a brief. Submitting an appeal can seem intimidating and complex, so having an experienced immigration attorney to guide you through each stage of the process and present compelling legal arguments on your behalf is crucial.

Seeking Legal Support?

In conclusion, navigating the defensive asylum process can be daunting, but it's important to remember that you have rights and options available to you.

Don't face the defensive asylum process alone. Contact an immigration attorney at Attorney At Law today to schedule a consultation.

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