Affirmative and Defensive Asylum: What’s the Difference?

While the affirmative and defensive asylum processes include many of the same steps, there are also several key differences that you should be aware of.

Last updated on May 14th, 2019

Refugees applying for asylum in the United States must generally do so within 1 year of entering the country.

If you file within this time period, you will submit your affirmative asylum application directly to USCIS. If, however, you are already in removal proceedings, or if you file outside of this 1 year deadline, an immigration judge will gain jurisdiction over your case. In this scenario, you’ll have to defend your asylum claim in court.

While affirmative and defensive asylum claims share the same applications, they also differ in several important ways. In this article, we’ll explore the similarities and differences between these two processes.

Filing for Asylum: The Similarities Between Affirmative and Defensive

Asylum in the dictionary.

No matter which type you choose to file under, you’ll need to fit the government’s definition of an asylee. Asylees are people who have left their country to escape from specific types of dangerous situations.

While the broader category of “refugee” can include individuals fleeing from things like natural disasters, only people in very specific circumstances can apply for asylum.

More specifically, asylum claims are usually based on grounds of persecution, or a valid fear of persecution, as a result of belonging to certain identity categories. These can include identifications such as race, religion, nationality, political opinion, or membership in a particular social group.

By granting you asylum, the U.S. government believes that you fit into one of the categories listed above. Further, they are stating that you’ve met all the other elements of asylum claims, including:

  • Proof of persecution.
  • Proof that your native government can’t or won’t help your situation.
  • An inability to relocate to any other part of your home country.

Rules and Deadlines for Asylum Claims

No matter which type of asylum you file under, the process has many rules and deadlines you’ll need to follow. For example, you must prove that you have not:

  • Been convicted of a serious crime (either inside or outside the U.S.).
  • Incited persecution of a group due to race, religion, politics, or social group.
  • Been a danger to U.S. security at any point.
  • Resettled in another country at any point in time.

Especially recently, this final point is important due to the increase in migrants from Central and South America.

If, for example, you settle in Mexico for some time along the way, then your asylum claim becomes much more difficult. This is because you have already “settled” in another country, so it is incredibly unlikely that judges will let you re-settle in the U.S.

Can I Choose Between Affirmative and Defensive Asylum?

Generally speaking, no. You don’t actually have a choice in how you file. Instead, the type of asylum you apply for is entirely dependent on the timing of when you submit the application.

More specifically, you have exactly 1 year to file an affirmative asylum claim after entering the country. If you file any time after this first year, or if you are already in removal proceedings and about to be deported, you have to file defensively.

However, you should note that there are certain exceptions to this rule, and you’ll want to talk over your options with an attorney before making a final decision about your case.

As an example of simply one exception, if your work or tourist visa expires you have one year from the date of expiration to file a claim for asylum.

Additionally, if you lose your affirmative asylum case with USCIS, an immigration court will automatically gain jurisdiction over you. This means you will have to appear in court to defend your claim, or risk being deported. In a similar manner, if you apply for affirmative asylum after having lived in the country for more than 1 year, USCIS will also refer your case to an immigration court.

Affirmative Asylum

Indian women smiling

As stated above, you have 1 year to apply for affirmative asylum once you enter the U.S. as a refugee. As the recommended option, the affirmative asylum process is relatively streamlined when compared to other immigration proceedings.

Generally speaking, there are a few steps you need to follow:

  1. Submit Form I-589 with the United States Citizenship and Immigration Services (USCIS).
  2. Have the USCIS take your fingerprints and do a background check (this process is called “biometrics”).
  3. Participate in an interview with your asylum officer.
  4. Wait while the asylum officer and other supervising officers review your materials and determine your eligibility.
  5. Receive their decision in the mail.

The major benefit of applying in this way is that you’re interacting directly with the asylum officer in charge of your case. Put another way, there’s no need to go to court. Additionally, you can stay in the U.S. while USCIS processes your asylum application.

If you haven’t received approval after 180 days, you may also file for work authorization using Form I-765, Application for Employment Authorization.

Defensive Asylum

Living in a camp by a railroad, picture from Greece.

As you might have guessed, “defensive asylum” is something you petition for defensively. Normally, this means that you’re already in removal proceedings and are trying to find a way to legally stay in the country.

Essentially, a defensive asylum claim is a way to defend yourself from being deported by an immigration judge. Instead of affirmatively filing your asylum claim with USCIS, you’ll instead have to defend yourself from deportation by filing for asylum in an immigration court.

We’ll briefly outline the general process below. However, things can change depending on the specifics of your case. For this reason, you should always hire an immigration attorney if you find yourself in removal proceedings.

The Defensive Asylum Process

First, you’ll receive a Notice to Appear (NTA) as part of removal proceedings. This notice will specify the date and time for your first day in immigration court, which is called a Master Calendar Hearing.

This hearing is essentially a day reserved for scheduling and documentation. The judge will set the dates for future hearings, and allow you to submit any documents to the court that you feel are relevant to your case.

You should note that failing to show up to any hearing is grounds for being deported in absentia. This means that, by failing to attend your hearing, you essentially lose your chance at claiming asylum.

If you can’t make it to court for your Master Calendar Hearing, make sure to call the courthouse (or your lawyer) well in advance so you can reschedule.

Another thing to note is that you’ll want to come to your Master Calendar Hearing prepared to answer any questions the judge might have. While you don’t need an attorney for this hearing, it’s still highly recommended that you hire one.

If you choose to go to this hearing by yourself, however, you should make sure to bring all relevant documentation. This will include identifying documents, your I-589 application, a background check, and any other supplements that might help your case.

While you may not need to bring an attorney to the Master Calendar Hearing, you should certainly hire one afterwards. The next step in the defensive asylum process is to gather relevant evidence, prepare testimony, and hire expert witnesses.

Denial rates are significantly higher for unrepresented applicants, so finding an experienced immigration attorney should be a top priority for you at this step.

The Individual Merits Hearing

During your Master Calendar Hearing, the judge will set a date for your individual merits hearing. This is basically the trial for your asylum claim. You will testify under oath, and both your attorney and the opposing attorney will have a chance to question you.

The purpose of this hearing is to determine the credibility of your answers and assess your character. Ultimately, this is one of the most important steps in your entire asylum case, as this is when the judge decides whether or not to grant you asylum.

If the judge denies your asylum claim, they will also order your immediate removal. You will not be able to re-enter removal proceedings. You will have 30 days to appeal the decision, otherwise you’ll face immediate deportation.

On the other hand, if the judge approves your application you can stay in the country indefinitely. You’re allowed to work, obtain a social security card, apply for U.S. benefits, and, down the line, even apply for a green card and citizenship after staying in the country for several years.

Conclusion

Back view of man walking with suitcase on blue sky outdoors background. Arriving at destination

The U.S. government has an obligation under both U.S. and international law to help asylees who are facing persecution in their home countries.

If you file for asylum within one year of entering the country, you can file for affirmative asylum. Otherwise, you’ll have to defend your asylum claim in immigration court.

In either path, the assistance of an experienced immigration attorney can prove invaluable to your asylum claim. At the very least, you should speak with an attorney to go over the risks and benefits of filing for asylum. Both affirmative and defensive asylum petitions can take months to process, and the advice of an attorney can help set your claim on the right track.

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