What is Defensive Asylum?

Asylum is the one of the most well-known protections for U.S. non citizens to legally stay in the country. At its core, asylum allows those who have been persecuted (or fear persecution) due to their nationality, race, religion, political opinion, or membership in a particular social group. The concept has its roots in Medieval England. In the U.S., there are two forms of asylum protection: affirmative asylum and defensive asylum. We covered affirmative in a previous blog; now, we will provide an overview of defensive asylum. 

First, Apply for Affirmative Asylum

The main difference between affirmative and defensive asylum is that individuals trying for affirmative asylum protection apply before any removal proceedings have begun against them. Those seeking affirmative asylum file Form I-589 with the USCIS. If applicants are deemed ineligible for asylum, then they will be referred to the Executive Office for Immigration Review, thus beginning the defensive asylum process. 

Another situation that can result in the commencement of the defensive asylum process is if you entered the U.S. through an official port of entry (like an airport or border crossing). Or, you could be apprehended by Customs and Border Protection (CBP) without proper documentation within 100 miles of the border after having been in the country illegally for less than two weeks. Finally, you will begin defensive asylum proceedings if you are apprehended by Immigation and Customs Enforcement (ICE) and you do not have documentation to be in the country legally. 

In the first two situations, you must request defensive asylum and a credible fear interview. At any rate, you should notify ICE, CBP, or any other immigration enforcement agency that you request defensive asylum in the U.S. After you make this request, an Asylum Officer will conduct an initial screening wherein he or she will determine whether or not you have a credible fear of persecution or torture. This preliminary screening will occur after you have spent at least 48 hours in custody; unfortunately, it could be weeks until you see an Asylum Officer. 

The Hearing

After you have been apprehended by ICE or CBP, you should contact an attorney as soon as possible. You may not have access to an attorney before your initial credible fear screening, but you are entitled to have legal representation before your hearing in front of an Immigration Judge. ICE will typically have an attorney present to present the government’s case that you should be removed from the country. The judge will either grant you asylum or, if he or she finds you ineligible for asylum, determine if you are eligible for a different relief from removal. If no relief is available, unfortunately, you will likely be ordered to leave the U.S. Fortunately, you are able to appeal the judge’s decision. 


The entire team at RelisLaw, PLLC is sympathetic and understanding to anyone who is seeking legal refuge in the U.S. Our founding attorney, Dr. Tamara Relis, is well-versed in the nuances of federal immigration law, with much experience guiding immigration cases to success. She additionally has decades of experience working in human rights related cases. We would be honored to help you or a loved one secure the same privileges. Get in touch with our firm to schedule a free 10-minute phone call with our team today. 

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We help people from around the world to live and work freely in the U.S., to achieve their dreams, unite families, or escape persecution. No matter what immigration service you need, RelisLaw will provide caring and dependable counsel to you and aggressive advocacy to vigorously fight for you using every available legal avenue. As a global firm, we work with people in countries around the world. We meet clients across the U.S., as well as in New York, Toronto, and Montréal. We also meet with clients globally, located in any country, via Skype and other platforms.

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