Defensive Asylum/Withholding
In U.S. Immigration law there are two ways of attaining asylum. On one hand there is the affirmative asylum process in which the applicant files for an adjustment of status to that of an asylee.  On the other hand, there is the defensive asylum process.  A defensive application for asylum occurs when a foreign alien is placed in removal proceedings before an immigration judge (EOIR).  As a defense against removal the alien requests asylum in the United States.  In particular, individuals are usually placed in these proceedings when USCIS denies their affirmative asylum application and refers them to an Immigration Judge, or when the individuals are placed in removal proceedings because they were caught violating Immigration law.

You are Eligible if:

  1. You must be physically present in the U.S.
  2. You must be able to establish that you are unable or unwilling to return to your country of nationality due to persecution or a well-founded fear of persecution based on your race, religion, nationality, and membership in a social group or political opinion.
  3. You must file for asylum within 1 year of arriving in the U.S. unless you can prove that circumstances did not allow you to.

You are not Eligible if:

  1. You have assisted in Nazi persecution or engaged in genocide.
  2. You have persecuted another person.
  3. You have been convicted of a particularly serious crime that makes you a threat to the United States.
  4. You have committed a serious non-political crime while outside the U.S.
  5. You represent a serious security threat to the U.S.

Procedure

•   If you are in Immigration Court proceedings:

  1. Complete Form I-589, Application for Asylum and for Withholding of Removal.
  2. Include all Required Documentation.
  3. File the Form I-589 and any Required Documentation with the Immigration Judge handling your case.
  4. File a copy of the Form I-589 and any Required Documentation with the Immigration and Customs Enforcement (I.C.E.) Office of Chief Counsel.
  5. File a copy of the first three pages of the Form I-589 with the USCIS Nebraska Service Center.
  6. File a copy of Form EOIR-28 with the USCIS Nebraska Service Center if you are represented by an attorney or representative.
  7. File a copy of the Pre-Filing Instructions provided by counsel for DHS with the USCIS Nebraska Center.
  8. You will then receive a notice of receipt from USCIS.
  9. You will receive an Application Support Center appointment notice for you and any dependent family members indicating when and where you will have to go to have your biometrics taken.
  10. Attend the biometrics appointment and obtain the biometrics confirmation document.  Keep this document as proof of biometrics collection for future immigration hearings.

•   Defensive Asylum after being Denied Affirmative Asylum:

  1. The beneficiary has been referred to an Immigration Judge after being denied Affirmative Asylum.
  2. Since the beneficiary already filed Form I-589 then it will be transferred over to the Immigration Judge.
  3. The Immigration Judge will hear your case and the case of the U.S. government represented by an Immigration and Customs Enforcement (ICE) attorney in an adversarial (courtroom-like) proceeding.
  4. After hearing the arguments of both sides the Immigration Judge will determine whether you are or are not eligible for asylum. 
  5. If you are found eligible then the Immigration Judge will grant you asylum.
  6. If you are granted asylum status then you will be eligible to apply for permanent resident status one year later.
  7. Complete Form I-485.
  8. Include all Initial Evidence.
  9. File the I-485 and any additional documentation with USCIS.
  10. If necessary, USCIS will notify you of any follow-up interviews.
  11. USCIS will determine whether you qualify for permanent resident status and will notify you via notice by mail.

•   Defensive Asylum after being placed in Removal Proceedings with EOIR:

  1. The beneficiary was placed in removal proceedings with the Executive Office for Immigration Review (EOIR) due to an immigration violation.
  2. The beneficiary must complete Form I-589, Application for Asylum and for Withholding of Removal.
  3. Include all Required Documentation.
  4. File the Form I-589 and any additional documentation with the Immigration Judge.
  5. Once you have successfully filed the application the Immigration Judge will hear your case and the case of the U.S. government represented by an ICE attorney in an adversarial (courtroom-like) proceeding.
  6. After hearing the arguments of both sides the Immigration Judge will determine whether you are eligible for asylum.
  7. If you are found eligible then the Immigration Judge will grant you asylum.
  8. If you are granted asylum status then you will be eligible to apply for permanent resident status one year later.
  9. Complete Form I-485.
  10. Include all Initial Evidence.
  11. File the I-485 and any additional documentation with USCIS.
  12. If necessary, USCIS will notify you of any follow-up interviews.
  13. USCIS will determine whether you qualify for permanent resident status and will notify you via notice by mail.

Required Documentation

  1. If you are including your spouse in your application then you must include three copies of your marriage certificate.
  2. If you are including your spouse in your application then you must include three copies of proof of termination for any prior marriages.
  3. If you are including your children in your application then you must include three copies of each child’s birth certificate.
  4. Include two copies of your completed Form I-589.
  5. Include an additional copy of the completed Form I-589, with required documents, used to apply for each one of your dependent family members.
  6. Include one passport style photograph of yourself and of each additional family member included in your application. These photos must have been taken within 30 days of filing your application. Also, print your complete name and A-number on the back of your photo.
  7. Include three copies of all passports (cover to cover) or other travel documents used by you and each of your dependent family members.
  8. Include three copies of all immigration documents used by you and each of your dependent family members.
  9. Include three copies of all other identification documents such as your birth certificate, military I.D. and driver’s license. Also, bring the originals to your interview.
  10. Include evidence of the conditions in the country from which you are seeking asylum.
  11. Include evidence of your well-founded fear of persecution based on your race, religion, nationality, or membership in a social group or political opinion. Evidence can include newspaper articles, affidavits of witnesses or experts, medical records, psychological records, doctor’s statements, periodicals, journals, books, photographs, official documents and personal statements or live testimony from witnesses or experts.
  12. If you have difficulty discussing the physical and psychological harm done to you then you should consider including a health professional’s report explaining this difficulty.
  13. If you cannot collect any evidence demonstrating your fear of persecution due to lack of availability then you must include a Form I-589, Supplement B, or additional sheets of paper with an explanation of why evidence is not available.
  14. If you are represented by an attorney or representative in these proceedings then you must include a Form G-28, Notice of Entry of Appearance as Attorney or Representative.

FAQ


Q1. If I was placed in the defensive asylum process because of a denied affirmative asylum application will I have to redo the application?
If you are currently placed in a defensive asylum procedure due to a denied asylum application then you will not have to redo the application since the one you filed will carry over to the immigration judge handling your case.

Q2. What are some of the primary differences between the affirmative and defensive asylum processes?
There are several very important differences between the two asylum processes that you should be aware of before you attempt to apply for asylum. First of all, in the affirmative process you are the one who initiates the application while for the defensive process you are placed in removal proceedings before an immigration judge and your only other choice to deportation is to apply for asylum. Another one of the key differences is that in the affirmative process you have to be interviewed by a USCIS asylum officer while in the defensive process you have to appear before an EOIR Immigration Judge and a government attorney for a court-like hearing. And finally, when you are going through the affirmative you have to provide your own qualified translator for the interview but for the defensive you will be provided a translator by the court.
 
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