UNDERSTANDING THE DISTINCTION: AFFIRMATIVE VS. DEFENSIVE ASYLUM APPLICATIONS

In the complex landscape of immigration law, seeking asylum in the United States can take two distinct routes: affirmative and defensive asylum applications. These pathways represent crucial distinctions in the process of obtaining asylum status and navigating the intricate legal framework designed to protect individuals fleeing persecution in their home countries.

 

Affirmative Asylum Application Process

The affirmative asylum process is tailored for individuals who are not currently in removal proceedings. It involves proactively applying for asylum through the U.S. Citizenship and Immigration Services (USCIS), a division of the Department of Homeland Security (DHS). Applicants present their case to a USCIS asylum officer, detailing the circumstances of their persecution and the grounds for seeking refuge in the United States. If the asylum officer denies the application, the individual is then referred to removal proceedings, where they can renew their asylum request through the defensive process and present their case before an immigration judge.

Defensive Asylum Application Process

In contrast, the defensive asylum process is designed for individuals who are already in removal proceedings. These proceedings typically occur when individuals are apprehended in the United States without proper legal documentation or are found to be in violation of their immigration status. In the defensive process, asylum is applied for as a defense against removal from the U.S. Applicants submit their asylum application directly to an immigration judge at the Executive Office for Immigration Review (EOIR) within the Department of Justice.

Access to Legal Representation

Regardless of whether individuals pursue affirmative or defensive asylum applications, they have the right to legal representation. However, unlike the criminal court system in the U.S., the government does not provide lawyers for individuals in immigration court, even if they are unable to afford legal counsel on their own. This underscores the importance of securing competent legal representation to navigate the complexities of the asylum process effectively.

Additional Forms of Protection: Withholding of Removal and CAT

Beyond affirmative and defensive asylum applications, there are alternative forms of protection available to individuals facing persecution in their home countries. Withholding of Removal and relief under the Convention Against Torture (CAT) provide avenues for safeguarding individuals from deportation in cases where asylum may not be granted.

Withholding of Removal offers protection to individuals who can demonstrate a likelihood of facing persecution if returned to their home countries due to factors such as race, religion, nationality, membership in a particular social group, or political opinion. While individuals granted withholding of removal are not eligible for a green card, they are permitted to remain and work lawfully in the United States.

Relief under CAT is available to individuals who fear torture in their home countries. To qualify, individuals must prove that they are more likely than not to be tortured, either directly by the government or with the acquiescence of the government, upon return to their country of origin. This form of relief provides an additional layer of protection for individuals fleeing persecution and torture in pursuit of safety and freedom in the United States.

The affirmative and defensive asylum application processes serve as essential avenues for individuals seeking refuge from persecution in their home countries. Understanding the nuances of these processes, along with alternative forms of protection available, is crucial for navigating the complex landscape of immigration law and securing safety and security in the United States.