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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.

While there are some similarities between the two types of asylum applications, there are distinct differences. Foreign nationals seeking asylum in the U.S. must understand these differences.

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 as follows:

  1. Affirmative asylum application
  2. Defensive asylum application
  3. Asylum Merits Interview 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:

  1. There is a change in circumstances that significantly affects the noncitizens' eligibility to apply for asylum
  2. There are extraordinary circumstances related to the delay in filing for affirmative asylum
  3. 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. A USCIS officer refers them to an immigration judge after they declare ineligibility for asylum. The affirmative asylum application concludes with this determination. Or
  2. 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
    • The Customs and Border Protection (CBP) stopped them 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 the removal proceeding. 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:

  • The U.S. government is represented by an Immigration and Customs Enforcement (ICE) attorney.
  • 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:

  1. 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
  2. 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:

 

Affirmative Asylum

Defensive Asylum

Removal Proceedings

If removal proceedings have not yet begun, the foreign national should use an affirmative asylum application.

The noncitizen is undergoing removal proceedings.

How to Apply

The foreign national applies for asylum through Form I-589 and Withholding of Removal with the USCIS.

  • A USCIS officer placed the foreign national under removal proceedings. This is done after denial of the affirmative asylum application.
  • The ICE or CBO places the foreign national in removal proceedings. This can be due to violations of immigration law. Or the foreign national underwent expedited removal proceedings. Then it was later found that they were an asylee with a well-founded fear of persecution.

Type of Hearing

Non-adversarial interview with an asylum officer.

Adversarial, court-like hearing before an immigration judge.

Interpreters

Foreign nationals must provide their own qualified interpreter

The immigration court provides a qualified interpreter for all proceedings.

 

 

Get Legal Help with Your Asylum Application

Going through the process of seeking an asylum claim is challenging and overwhelming. You must go through legal steps and submit the necessary documentation. The process also involves crucial interviews with USCIS officers and extensive adjudication of your immigration status. But you don't have to face these processes alone. There are immigration attorneys that can guide your way to 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 or your family members are looking at asylum applications, consult with an immigration attorney. They can provide helpful information on navigating the complexities of your asylum application. Immigration attorneys can also

give

legal advice on other matters related to immigration law.

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