What are the Differences Between Defensive and Affirmative Asylum?
Within the United States (U.S.), thousands of immigrants seek asylum every year. The American asylum system has two separate application and consideration processes: affirmative and defensive asylum. Both application processes lead to the same outcome, but the journeys required by applicants vary. Further, the circumstances of applicants undergoing defensive asylum proceedings are often very different than those seeking affirmative asylum. Thus, it is important that citizens and immigrants alike understand the differences between affirmative and defensive asylum.
In today’s article, we describe each type of U.S. asylum in detail. You’ll learn who can apply for each asylum type, what the application process looks like, and what options are available should an asylum claim be denied. You’ll learn what to expect, on a basic level, during either asylum application process.
Most importantly, if you are seeking asylum, you should employ the guidance and assistance of an expert immigration attorney. They will be your best ally during the entire process. (Did you know that at Nanthaveth & Associates, we offer free initial consultations?)
First and foremost, this article will review the general definition of asylum in America. Asylum is not available to everyone, and even when someone is eligible they must undergo intense screening and vetting. Many people who apply for asylum in the U.S. receive case denials. For example, in 2018, roughly 65% of defensive asylum cases were denied. This represents a growing trend as overwhelmed courts face changing policies and increased pressure from the Trump administration.
The application process itself can also be lengthy, considering significant processing delays both for affirmative cases (USCIS) and defensive cases (U.S. immigration courts). This can make asylum seekers feel like their life must remain “on hold” while they wait for consideration. When potential asylees work with a qualified lawyer, they have the benefit of a strong defender who can ensure that all necessary requirements (like paperwork) are met, correct, and timely.
According to the U.S. Citizenship and Immigration Services(USCIS), in order to request asylum, a person must fear return to their home because of persecution due to the following:
- Membership in a Social Group; and/or
- Political Opinion.
Applicants must also meet the Immigration and Nationality Act’s definition of a refugee. Further, applicants must be present in the United States or at a border entry point at the time of application. If a person cannot return to their country of origin but is not on U.S. soil, they would need to seek refugee status. Once in the U.S., petitions for asylum must be received within one year (with certain exceptions). Finally, any applicant cannot possess any bars to asylum, including prior terrorist connections, acts of persecution, or other criminal activity.
All types of U.S. asylum depend upon the idea of “credible fear.” Whether applying via the affirmative or defensive asylum process, all candidates will be interviewed to establish if their fear (and thus their reason to seek asylum) is “credible.”
According to the USCIS, “credible fear” simply represents a “significant possibility” that a person or their family would face serious consequences including torture, imprisonment, violence, and even death upon returning home.
If credible fear cannot be established, a candidate’s asylum case will be denied. If this occurs, don’t panic. You still have options that you can explore with an experienced immigration attorney.
The first type of asylum we will discuss is “Affirmative Asylum.” The USCIS conducts this application and screening process, rather than immigration courts. Applicants can arrive within the U.S. via any means and seek affirmative asylum, but they must meet eligibility requirements (see below).
In order to apply for affirmative asylum, one must:
- Meet the INA’s official definition of a refugee;
- Be present on U.S. soil or at an official port of entry;
- Not currently be undergoing removal proceedings; and
- Fear return to their home country due to persecution or violence.
Once arriving in America, affirmative asylum applicants have one year to submit their paperwork for consideration. Under certain unique circumstances, the USCIS may accept an affirmative asylum application after one year, but it is best to apply within the deadline. The USCIS handles all aspects of the affirmative asylum application process.
When a person is ready to apply, they will complete and submit Form I-589, Application for Asylum and for Withholding from Removal. Also required are certain biometrics information, like fingerprints and photo identification. It does not cost anything to file Form I-589. Despite this, the application process can be difficult due to the amount of paperwork and margin for error. The best way to avoid significant delays and denials due to error? Hire an experienced immigration attorney who can guide you through the process and handle any required paperwork.
While the USCIS processes an affirmative asylum application, the candidate is free to live their life as usual. When their paperwork is fully processed, they will receive an invitation to schedule an interview with an Asylum Officer. The asylum officer’s job is to talk with applicants about their lives, experiences, and reasons for seeking asylum. After the interview, the asylum officer then determines if a person is eligible for asylum.
The Asylum Interview
The asylum interview is the most critical aspect of the affirmative asylum process. Applicants and all derivative beneficiaries (like children and spouses) should arrive with all required paperwork, including a hard copy of their I-589, identification documents, birth and marriage certificates, and travel documents. Due to the sensitive and stressful nature of the interview, applicants are welcome to bring legal representation to the interview. A lawyer will both protect your rights and serve as a source of comfort.
During the hour-long interview, candidates must tell their asylum officer as many details as possible in order to help establish credible fear. While this can be daunting and emotional, it’s a necessary step to gaining asylee status. After the interview, candidates will typically receive a final decision within two weeks. You can read more about what to expect during the interview on the USCIS’s website.
Unfortunately, many people are devastated when they receive an asylum denial. First and foremost, remember that an asylum denial does not mean that the asylum officer believes that you were lying. After receiving an affirmative asylum denial, the USCIS may refer the candidate for removal proceedings. At that time, they can seek defensive asylum through the U.S. immigration court system.
When a person faces certain deportation, a final defense from removal is “Defensive Asylum.” Unlike affirmative asylum, which is processed via the USCIS, defensive asylum cases are considered through the U.S. immigration court system. Final decisions are rendered by a U.S. immigration judge.
Technically, anyone facing removal proceedings can request consideration for defensive asylum. In order to be truly eligible, though, a person must:
- Meet the INA’s definition of a refugee;
- Be present on American soil; and
- Possess credible fear of persecution in their home country.
Because defensive asylum applicants are undergoing removal proceedings, if this level of asylum is denied, deportation is a very real possibility.
There are several key procedural differences between affirmative and defensive asylum applications. Firstly, affirmative asylum candidates are free to continue their lives during proceedings. Unfortunately, this is often not the case for defensive asylum seekers, who may find themselves detained by Immigration and Customs Enforcement (ICE) for a portion or the entirety of their case. Detainment carries its own serious consequences, including isolation and limited legal options (if any).
Like affirmative asylum seekers, defensive asylum candidates are screened for “credible fear.” A government agent will discuss the potential asylee’s experience and reason for seeking protection. Further, the official will attempt to determine if the applicant has any bars to asylum. If they are found to possess credible fear and are otherwise eligible, the case moves forward to an immigration judge. Again, it is imperative that any candidate has legal counsel during interviews to ensure fair consideration.
If a defensive asylum case continues to an immigration judge, the judge will make the final decision. If an applicant receives relief from deportation through defensive asylum, they will immediately receive asylee status. All derivatives will also receive asylee status. On the other hand, if a case is denied, removal proceedings will continue. An immigration attorney can help consider other options for relief, if applicable.
What if Your Asylum Claim is Denied?
Remember, if your asylum case is denied, there are often options. For example, if an affirmative asylum application is denied, the candidate still has the option to claim defensive asylum.
If a defensive asylum candidate receives a denial, it can feel like hope is lost. But there might be other options for relief from deportation. An expert immigration attorney can help guide the way during such a stressful time.
Work with an Expert Austin Immigration Attorney
For thousands of refugees across the globe, asylum is a promise of a new life away from fear. Unfortunately, the U.S. application process can be lengthy, frustrating, and stressful. Successful cases require patience, persistence, and attention to detail. While no one can predict the outcome of any particular case, an immigration attorney will be your greatest ally during your asylum application. They can ensure all paperwork is correct and submitted on time. Further, they will protect your rights. Remember – work exclusively with attorneys who are registered with your state’s bar association.
Nanthaveth & Associates provides top-tier legal services to immigrants across Austin, Texas. We believe in the American dream, and each day we fight for our clients. Contact us today to schedule a free initial consultation. You’ll sit down with one of our skilled attorneys, discuss your case or application, and leave with a path forward.