An asylum application can be life-changing for any migrant arriving in the United States. This is a long-standing resource in the U.S. immigration system, which seeks to help people in delicate situations in their country of origin.
However, there are different types of asylum in the United States. So today, the specialists at Zava Immigration Law Group will tell you everything you need to know about defensive asylum.
Table Of Contents
What is defensive asylum?
A defensive asylum application or asylum defense is given as part of the deportation defense process (either because an affirmative asylum application was denied or for some other reason for removal). This process takes place in an immigration court and is a way to seek legal refuge in the United States.
What are the requirements to apply for defensive asylum?
To initiate the defensive asylum process, you must meet the following requirements:
- Be in removal proceedings in Immigration Court with the Executive Office for Immigration Review (EOIR).
- Have been referred by USCIS to an immigration judge after the affirmative asylum process determined ineligibility.
- Being arrested in the United States without proper legal documentation or in violation of your immigration status.
- Be arrested by U.S. Customs and Border Protection (CBP) while attempting to enter the country without proper documentation and have a credible fear of persecution or torture determined by an asylum officer.
Please note that each case is unique and you may be required to comply with some additional requirements. Therefore, it is advisable to consult with an immigration attorney who can advise you. Do not risk your future by facing this process on your own. Contact our attorneys and get the legal help you need.
What documentation do I need to present for defensive asylum?
To apply for defensive asylum, you must submit the following documentation:
- Form I-589: You must submit this document to initiate your application for defensive asylum. However, in some cases, you may be able to base your application on a positive credible fear determination and not file the form.
- Proof of identity: Documents that prove your identity such as your passport, identity card, birth certificate, etcetera.
- Proof of persecution: Documents that support your fear of persecution in your home country, such as police reports, medical evidence of injuries, photographs, testimonies, letters, among others.
- Supporting documents: Any documents that support your story, such as letters from witnesses, reports from human rights organizations, and evidence of affiliation with political or social groups, among others.
- Travel Documents: Tickets, U.S. entry stamps, or documentation related to your travel from your home country to the United States.
- Documentation of your immigration status: Any document that proves your current immigration status, such as a tourist or student visa, among others.
- Documents from previous legal proceedings: If you have had any contact with the U.S. immigration legal system, you must provide related documents, such as Notices to Appear (NTAs) or others.
- Personal statement: A written statement setting out the details of your case, the reasons for your asylum application and any other relevant information.
It is important to remember that the defensive asylum process can be complex, and the documentation required may vary depending on the specific circumstances of your case. Therefore, it is vital to have the advice of an immigration attorney. At Zava Immigration Law Group we can help you. Tell us about your case and let’s defend your rights together.
What is the defensive asylum process like?
Step 1 – Preliminary Hearing (Master Calendar)
In this first step of the defensive asylum process, the judge will ask you questions to determine whether you qualify to stay in the U. S. under any permissible means (asylum, withholding of removal, or protection under the Convention Against Torture).
Step 2 – Individual Hearing or Merits Hearing
At this hearing, you and your witnesses (if you have any) will give testimony and answer questions related to your asylum application. It will be attended by:
– You.
– Your attorney (if you have one).
– A U.S. Immigration and Customs Enforcement (ICE) attorney representing the U.S. government.
– A translator (if necessary).
At the end of this hearing, the judge will decide whether to grant you asylum or withholding removal at the end of this hearing. In some cases, the decision may be delayed, but this does not necessarily imply an unfavorable outcome.
Step 3 – Appeals
Once the judge’s decision has been communicated, you will be asked whether you wish to reserve or waive your right to appeal. If you decide to appeal, be sure to file the forms within 30 days of the hearing to maintain your right.
Remember that the defensive asylum process can be complicated and it is essential to have the assistance of an immigration attorney to properly present your case. At Zava Immigration Law Group we can help you. Contact our attorneys today and let us begin preparing for your hearing.
What is the difference between affirmative and defensive asylum?
Although there are several differences between affirmative and defensive asylum, they can be summarized in the following table:
| Appearance | Affirmative Asylum | Defensive Asylum |
| Placement in removal procedures | No, unless you are an unaccompanied minor. | Yes, it is initiated after removal ordered by an immigration judge or other circumstances. |
| Application Submission | You file Form I-589 with USCIS. | A Form I-589 may not need to be filed, and may be based on an affirmative credible fear determination. |
| Interview | Non-confrontational interview with USCIS | Credible fear verification interview with USCIS or adversarial hearing before an immigration judge |
| Determination | USCIS makes decision | Immigration judge makes decision |
| Interpreter | You must bring a qualified interpreter | USCIS provides a qualified interpreter or the immigration court provides one. |
Note that defensive and affirmative asylum have different processes and requirements. Therefore, it is important to have an immigration attorney to help you choose the right procedure for your case. At Zava Immigration Law Group we can help you. Contact us and start your asylum process in the United States.
What is the Credible fear assessment?
The Credible Fear Assessment is a process by which it is determined whether a person in expedited removal proceedings who has expressed a fear of persecution or torture has a “significant likelihood” of demonstrating this fear in an interview with an asylum officer.
Are there any prohibitions or vetoes on applying for defensive asylum based on credible fear?
There are no mandatory bars set for demonstrating a “credible fear” of persecution or torture in the evaluation process. However, there are some prohibitions on the granting of asylum and exemption from removal:
– If you have persecuted others because of race, religion, nationality, membership in a particular social group or political opinion.
– If you have been convicted of a particular felony.
– If there is reason to believe that you have committed serious non-political crimes outside the United States.
– If you have been involved or may be involved in terrorist activity, have incited terrorist activity, or are a member or representative of a terrorist organization.
– If you have lived in another country for an extended period of time.
– If there is justifiable cause to believe that he is a threat to the security of the United States.
What is the EOIR?
The Executive Office for Immigration Review (EOIR) is a U.S. government agency that oversees the immigration courts and the Board of Immigration Appeals (BIA). Its main function is to administer and resolve immigration and asylum cases, ensuring compliance with laws and legal procedures.
How long can defensive asylum processing take?
The time it takes to process defensive asylum in the United States can vary widely. Its duration depends on the complexity of your case, the workload of the courts and other factors.
The legal defense in the defensive asylum process
In a process where your future is at stake, the assistance of a qualified immigration attorney is invaluable to increase your chances of obtaining asylum. Their legal knowledge and experience are essential when facing a defensive asylum process.
In this regard, our professionals at Zava Immigration Law Group can help you gather evidence, prepare depositions, and present strong arguments before the immigration judge, guiding you through the complexities of the legal process. Do not risk your future. Contact us today and let’s fight for your rights together.
Sources
USCIS – Obtaining Asylum in the United States
USCIS – Form I-589, Petition for Asylum and Application for Suspension of Removal
Other resources
How to Apply for Cancellation of Removal, Step by Step
Cancellation of Removal with EOIR 42B Form
How to Act When Faced with a Deportation Order in the U.S.
Deportation In The United States: Exploring The Most Important Causes
