Affirmative Asylum Applications vs. Defensive Asylum Applications: What's the Difference?

Foreign nationals seeking asylum in the United States have two ways to file asylum applications. First, the affirmative asylum process, and second, the defensive asylum process. The choice between these two will depend on the immigration status of the applicant or whether formal removal proceedings or deportation have begun.

An immigration attorney can make the asylum application process feel far less overwhelming by helping you understand which path—affirmative or defensive—applies to your situation and what each step requires.

The goal of affirmative and defensive applications is to provide U.S. asylum. There are three ways to get asylum status in the United States, which are:

• Affirmative asylum application
• Defensive asylum application
• Through an Asylum Merits Interview, which is only granted after the asylee shows a well-founded fear of persecution in their home country.

Affirmative Asylum Applications

The noncitizen must be physically present in the United States to earn asylum through the affirmative process. They may apply for asylum regardless of the status of their arrival in the United States or their immigration status.

For the affirmative process, asylum seekers should submit Form I-589 to the U.S. Citizenship and Immigration Services (USCIS). The foreign national must apply within one year of the last arrival in the country. But the one-year limitation does not apply in the following situations:

• There is a change in circumstances that significantly affects the noncitizens’ eligibility to apply for asylum
• There are extraordinary circumstances related to the delay in filing for affirmative asylum
• Given these circumstances, the application was filed within a reasonable time.

The USCIS officer will refer the foreign national to removal proceedings upon denial of the asylum application. And if the person has no lawful immigration status in the country, the noncitizen can use defensive asylum applications.

After referral to removal proceedings, the noncitizen will receive a Notice to Appear (NTA). The NTA will refer the case to an immigration judge under the Department of Justice’s Executive Office for Immigration Review (EOIR). The EOIR immigration judge will conduct a trial de novo. This means the immigration judge will conduct a new hearing. The judge will issue a decision independent of the past decisions made by the USCIS.

Defensive Asylum Applications

The defensive asylum process applies to noncitizens undergoing removal proceedings with the EOIR. Noncitizens are often referred to as defensive asylum in one of the following ways:

1. Referral to Immigration Judge

A USCIS asylum officer refers them to an immigration judge after they declare ineligibility for asylum. The affirmative asylum application concludes with this determination.

2. Removal Proceedings Are Underway

The noncitizen is undergoing removal proceedings because of the following:

• They were stopped at the U.S. port of entry without legal documentation or in violation of immigration law; or
• Customs and Border Protection (CBP) stopped them from trying to enter the U.S. illegally. They are then placed under expedited removal. Then a USCIS officer found them to have a credible fear of persecution.

The Department of Homeland Security (DHS) starts removal proceedings, and an immigration judge hears arguments. The DHS must serve the noncitizen with a Notice to Appear (NTA) to begin the removal process. The DHS also files a charging document with the EOIR’s immigration court.

During the defensive asylum proceedings, the immigration judge hears the case in a courtroom-like process. The judge will then hear the argument from each party:

• An Immigration and Customs Enforcement (ICE) attorney, representing the U.S. government
• The noncitizen and their attorney, if legally represented

Asylum Merits Interview with the USCIS

The following reasons merit an asylum interview with a USCIS officer:

• The noncitizen is placed in expedited removal proceedings.
• The noncitizen expressed an intention to apply for asylum.
• The intent to apply for asylum is due to fear of persecution or torture in their home country.
• The noncitizen expresses fear or unwillingness to return to their home country due to this well-rounded fear of persecution.

If the noncitizen meets all these reasons, a USCIS officer will refer them to a “credible fear interview.” Here, a USCIS officer will interview the noncitizen. The officer will decide if the fear of returning to their home country is reliable and grounded on facts. The fear of persecution can be due to religion, race, nationality, political opinion, or membership in a particular social group.

Then, if the USCIS officer agrees to this finding, they may either:

• Consider the asylum application of the noncitizen. They may also consider withholding the removal proceedings and giving noncitizen protections under the Convention Against Torture (CAT). This process is also known as the Asylum Merits Interview; or
• The USCIS officer may issue the noncitizen a Notice to Appear in an immigration court. The immigration judge will assess if the noncitizen is eligible for asylum or withholding of removal proceedings.

Main Differences Between Affirmative and Defensive Asylum Applications

The following table lays out the main differences between these two types of asylum cases:

Get Legal Help with Your Application for Asylum

Going through the asylum application process—whether affirmative or defensive—can be overwhelming and intimidating. It’s crucial that you complete each step correctly and submit all necessary documentation. This process also involves high-stakes interviews with USCIS officers and extensive adjudication of your immigration status.

But you don’t have to face these processes alone. Immigration lawyers can guide you through the stages of seeking asylum in the U.S. or acquiring refugee status. They can also give you a better understanding of your eligibility to apply for asylum. If you have other immigration concerns, they can offer valuable legal advice on those matters, too.

FindLaw’s directory of immigration attorneys can get you started. Enter your city or ZIP code for a list of qualified legal professionals in your area. Your search results will also show important details about prospective lawyers, including ratings, languages spoken, and whether they offer free consultations.