DIFFERENCE BETWEEN AFFIRMATIVE AND DEFENSIVE ASYLUM

Affirmative Asylum Overview

1. Definition and Purpose:

Affirmative asylum is for individuals not currently in removal proceedings who voluntarily present themselves to the U.S. Citizenship and Immigration Services (USCIS) to apply for asylum.

2. Application Process:

Filing the Application: Asylum seekers must submit Form I-589, Application for Asylum and for Withholding of Removal, to USCIS. A lawyer ensures the form is completed accurately, preventing delays or rejections due to minor errors.

Interview: After the application is filed, the applicant will be scheduled for an interview with a USCIS asylum officer. An experienced lawyer will prepare you for the interview with a USCIS asylum officer, helping you understand the types of questions you might face and how to present your case effectively.

Decision: The asylum officer will determine whether the applicant qualifies for asylum based on their fear of persecution due to race, religion, nationality, membership in a particular social group, or political opinion. If approved, the applicant may live and work in the U.S. If denied, the applicant may be referred to immigration court, where they can apply for defensive asylum. A lawyer can navigate this transition smoothly and represent you in subsequent proceedings.

3. Timing:

Applicants must apply for affirmative asylum within one year of their last arrival in the U.S., though there are exceptions for extraordinary circumstances.

Defensive Asylum Overview

1. Definition and Purpose:

Defensive asylum is a process for individuals who are in removal proceedings before an immigration judge. This pathway is used as a defense against deportation from the United States.

2. Application Process:

Removal Proceedings: Defensive asylum seekers are typically placed in removal proceedings after being apprehended by Immigration and Customs Enforcement (ICE) or after failing to obtain affirmative asylum.If you are placed in removal proceedings, it can be a daunting experience. A lawyer will represent you, ensuring your rights are protected and your case is presented compellingly.

Filing the Application: The application for asylum, Form I-589, is submitted as part of the removal proceedings.

Court Hearing: The applicant's case is heard by an immigration judge in an adversarial setting. The Department of Homeland Security (DHS) will have a lawyer arguing for the applicant’s removal, while the applicant (or their attorney) argues for asylum. Having a lawyer is crucial. They will advocate on your behalf, counter the arguments of the DHS lawyer, and help you articulate your fear of persecution.

Decision: The immigration judge will decide whether the applicant qualifies for asylum. If the judge denies asylum, the applicant may appeal the decision.

3. Timing:

There is no specific deadline to apply for defensive asylum as it occurs within the context of removal proceedings.

Key Differences

1. Initiation of Process:

• Affirmative Asylum: Initiated by the asylum seeker who is not in removal proceedings.

• Defensive Asylum: Initiated as a response to being placed in removal proceedings.

2. Adjudicating Body:

• Affirmative Asylum: USCIS asylum officers conduct the initial interview and make the decision.

• Defensive Asylum: Immigration judges in an adversarial court setting make the decision.

3. Interview vs. Hearing:

• Affirmative Asylum: Non-adversarial interview with a USCIS officer.

• Defensive Asylum: Adversarial hearing in immigration court with a judge and government attorney.

4. Timing and Deadlines:

• Affirmative Asylum: Must apply within one year of arrival in the U.S., with some exceptions.

• Defensive Asylum: Application is part of the removal proceedings with no specific deadline but requires prompt action.

Conclusion

The asylum process in the United States is fraught with challenges and legal intricacies. Whether seeking affirmative or defensive asylum, the expertise of a lawyer can provide invaluable support. They ensure your application is thorough, your rights are protected, and your case is compellingly presented. Don't navigate this complex process alone—seek professional legal assistance to maximize your chances of finding safety and protection in the U.S.