Affirmative and Defensive Asylum: Learn the Differences
Thousands of refugees across the world seek asylum each year. Asylum is a globally recognized form of government protection, and each person has a right to seek it in the country of their choosing. In the United States (U.S.), asylum rights and laws are governed by the Immigration and Nationality Act (INA). Any person may seek asylum in the U.S., no matter their country of origin, religion, or political opinions. If granted asylum, a person will gain special status with the U.S. Eventually, asylees are able to become green card holders and, with time, naturalized U.S. citizens.
Asylum rights have been in the news nationwide during recent months. This is due to a large migrant caravan that sparked President Donald Trump to attempt to alter asylum law. Originating in Honduras, the caravan contained thousands of people, including many families who planned to seek asylum at the U.S.-Mexico border. While the president controversially attempted to alter asylum law in November 2018, the Supreme Court ruled in late December that this was unconstitutional, protecting the rights of asylum seekers across America.
This article will provide answers regarding some specific details of asylum in the United States. Who can seek asylum? And what types of asylum are available to refugees? What can potential asylees expect during the application process?
Firstly, it’s important to establish a definition of asylum in the U.S. Only certain people can request asylum, and there is a rigorous application process. Not everyone who applies for asylum will have their cases approved. An experienced immigration lawyer can help applicants ensure that their paperwork and other requirements are complete, avoiding delays and frustration.
In order to request asylum, a person must be incapable of returning to their home country due to threat or fear of harm, persecution, or imprisonment due to their:
- Membership in a particular social group; and/or
- Political opinion.
Two other important qualifications exist for any potential asylee. First, a person must also be either physically present within the U.S. or at an official point of entry, like a border patrol station. If a person who fears return to their country of origin but is not either on U.S. soil or at a port-of-entry, they would need to seek refugee status and protection. Finally, any asylum applicant must not have any bars to asylum, including previous criminal activity, previous acts of persecution, or terroristic ties.
Types of Asylum
For a potential asylee, there are two types of U.S. asylum: affirmative and defensive. While the outcome is identical should a candidate receive approval, the application processes are very different. Throughout the application process, a candidate can expect the U.S. government to attempt to assess and confirm their experiences in a variety of ways.
Below, this article will discuss the two different types of asylum application processes in more detail.
During both affirmative and defensive asylum application proceedings, a candidate can expect to be interviewed to determine “credible fear.” All this means is that a U.S. government agent or employee will speak with a potential asylee about their specific situation. If this situation meets the U.S. government’s definition of “credible fear,” asylum proceedings will move forward. If it does not, the asylee’s request will be denied.
The USCIS defines “credible fear” as a “significant possibility” that a person or their family would face harm, persecution, or torture upon return to their country of origin.
When a person makes the decision to apply for affirmative asylum, the most important step they can take is to hire an immigration lawyer. Currently, massive backlogs have slowed the U.S. consideration and approval process, and mistakes on paperwork can have devastating effects.
Who Can Apply for Affirmative Asylum?
When a potential asylee seeks affirmative asylum, they:
- Meet the definition of a refugee;
- Cannot return to their country of origin due to fear;
- Are present on U.S. soil; and
- Are NOT currently in removal proceedings.
What Does the Application Process Look Like?
Persons seeking affirmative asylum must apply within one year of arriving in the U.S., with few exceptions for unusual circumstances. For this form of asylum, candidates will apply through the United States Citizenship and Immigration Services (USCIS). This will include the filing of Form I-589, Application for Asylum and for Withholding of Removal along with its required biometric elements, like fingerprints and photos. There is no fee for filing this form, but it must be completed according to specific instructions. Such instructions for applying to the USCIS can be found here.
While waiting for affirmative asylum processing, applicants are free to continue their lives as usual. Eventually, candidates will receive their appointment for their asylum interview. When a candidate has a lawyer, they can petition for their counsel to be present during the interview. This is incredibly helpful – it alleviates stress during the interview and can help applicants in many ways.
The asylum interview is a critical step in the consideration process. In addition to a lawyer (if applicable), applicants should bring any derivative beneficiaries likes children and spouses. During the interview, which normally lasts about an hour, applicants will meet with a U.S. government agent appointed to discuss their case. While it can be upsetting or traumatizing, it’s very important to tell the U.S. agent every detail. This helps them to determine credible or reasonable fear, and will ultimately decide if a case is approved or denied. You can read more about what to expect during the interview on the USCIS’s website.
Unfortunately, if an affirmative asylum applicant receives a denial from the USCIS, they now may be subject to removal proceedings. If this occurs, the person can seek defensive asylum, the second type of asylum, which we describe in more detail below.
Contrary to affirmative asylum, defensive asylum takes place through immigration courts, with a judge making the final decision if or when a case proceeds to the final stage.
Who Can Apply for Defensive Asylum?
Like affirmative asylum, anyone can appeal for defensive asylum. But, to be considered, seekers must:
- Meet the definition of a refugee;
- Be unable to return to their country of origin due to fear; and
- Be present on U.S. soil.
The main distinction is that defensive asylum seekers are currently in removal proceedings. This means that if their application is denied for any reason, they may face immediate removal, or deportation, from the U.S. Often, migrants who cross the southern U.S. border and are apprehended by border patrol or ICE seek asylum. Because of their situation, they would be considered for defensive asylum as their case moves through the immigration court system.
What Does the Application Process Look Like?
Defensive asylum proceedings vary from affirmative asylum proceedings in several ways. First, in affirmative asylum, applicants are free to continue their lives as usual while their application processes. For defensive applicants, this if often not the case, and some are even detained for the entirety of their case. Detainment carries its own challenges, setbacks, and harmful effects that can deter fair judgment for defensive asylum applicants.
Similarly to affirmative asylum, those seeking defensive asylum are subject to a screening for “credible fear.” During the interview, a government agent will talk to the candidate to determine if their case meets the U.S.’s standards for asylum. Again, it’s crucial if possible for defensive asylum seekers to have attornies with them during this interview.
If a candidate’s case establishes “credible fear,” the case will move forward to an immigration judge. At this point, the potential asylee will have to wait for their court date, which could take weeks or months. At that time, they may be freed on a promise to return to court at the appropriate time, or they may remain in detainment.
When a case finally reaches an immigration judge, the judge will decide whether or not to grant defensive asylum. If the case is approved, the candidate and all dependents will immediately receive asylee status, and will no longer be considered for deportation. If denied, removal proceedings will continue. At that point, a lawyer may be able to help stop or delay removal via other means, so proper representation is essential.
If Your Asylum Claim is Denied
When an asylum applicant faces a devastating denial, there are still options available. An expert immigration attorney can guide the process and protect a potential asylee’s rights.
If a person applied for affirmative asylum and received a case denial, they may enter into removal proceedings. When this occurs, the candidate can seek defensive asylum.
If a person seeking defensive asylum receives a denial, they are a direct candidate for deportation, or removal. While the situation may be dire, there are often still options available. A skilled lawyer can discuss other ways to stop deportation, if they are available. Either way, proper counsel will ensure an applicant receives fair consideration.
Work with an Expert Immigration Attorney
Seeking asylum in the United States can be a very daunting process. Not only does it require paperwork, patience, and bravery, it can also be tiring and frustrating. A skilled immigration lawyer knows how to navigate complicated U.S. asylum application processes.
They can help you file paperwork correctly and in a timely fashion, avoiding potential delays, denials, and heartbreak. Additionally, lawyers can prepare you for every step of the consideration process, including interviews with U.S. agents. Finally, a skilled lawyer will ensure you receive a fair judicial process and protect your rights.
The attorneys at Davis & Associates passionately serve Texans each and every day. We look forward to hearing from you. If you wish to apply for asylum, don’t do it alone. Sit down with us for a free initial consultation – we can discuss your options and develop an action plan.