Understanding the Distinction between Affirmative and Defensive Asylum in the USA
- sacredheartimmigra
- Jan 2, 2024
- 1 min read
Affirmative Asylum:
Application Process: Affirmative asylum is for individuals who are not in removal (deportation) proceedings. To apply affirmatively, an individual must be physically present in the United States, regardless of their immigration status, and submit an application for asylum to the United States Citizenship and Immigration Services (USCIS) within one year of their arrival in the country.
Interview and Review: After submitting the application, the applicant will be scheduled for an interview with an asylum officer. During this interview, the applicant presents their case, explains their fear of persecution, and provides supporting evidence. The officer evaluates the case and decides whether to grant asylum.
Appeals and Hearings: If the asylum application is denied, the applicant may be referred to immigration court for removal proceedings. They have the opportunity to appear before an immigration judge to appeal the decision and present their case again. This marks the transition from affirmative to defensive asylum.
Defensive Asylum:
Application Process: Defensive asylum is for individuals who are in removal proceedings before an immigration judge. This occurs when someone is apprehended at the border or caught residing unlawfully in the U.S. and expresses a fear of persecution if returned to their home country.
Asylum Hearing in Immigration Court: During the immigration court proceedings, the individual presents their case for asylum as a defense against removal from the United States. The immigration judge will hear the case, consider evidence, and determine whether the individual qualifies for asylum based on the criteria laid out in U.S. asylum law.
Appeals and Further Legal Steps: If the immigration judge denies the asylum claim, the individual may appeal the decision to the Board of Immigration Appeals (BIA) and, in some cases, to federal courts.
