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Defensive asylum can be a vital form of protection for individuals facing deportation proceedings in immigration court. It offers a path to safety for those at risk of deportation, giving them the chance to stay in the United States instead of being returned to a country where they fear harm. Understanding how defensive asylum works is crucial for individuals seeking protection, as it could be the difference between continued safety in the United States, versus being sent back to the home country with the potential of facing harm and danger.

Key Highlights

• Defensive asylum is a legal protection available to those facing deportation or removal from the United States.
• It differs from affirmative asylum, where individuals apply proactively while outside the U.S. or within their first year of arrival.
• Individuals must prove they meet specific eligibility criteria, including establishing a well-founded fear of persecution in their home country, to qualify.
• The process involves navigating immigration court proceedings and presenting evidence substantiating the claim.
• Seeking guidance from an experienced immigration attorney is advisable due to the complexities involved.

What is defensive Asylum?

Defensive asylum provides foreign nationals a way to seek protection when they are at risk of being deported from the U.S. It can be claimed if an individual has a fear of persecution in their home country, and it usually arises during removal proceedings—meaning that the individual is already facing the possibility of deportation. 

To qualify for defensive asylum, a person must demonstrate a genuine risk of persecution based on specific grounds, such as race, religion, nationality, political opinion, or membership in a particular social group. Defensive asylum offers a critical lifeline for those in vulnerable situations, giving hope for safety and an opportunity for a new beginning.

The Basics of Asylum: Affirmative vs. Defensive

Asylum is a form of protection for individuals escaping persecution, and there are two primary ways to apply: affirmative asylum and defensive asylum. The affirmative asylum process is for those who are already in the United States but have not yet been placed into removal proceedings. These individuals must apply for asylum within one year of arriving in the country.

Defensive asylum, by contrast, is available to individuals who are already facing removal proceedings and are at risk of deportation. It is for those who can demonstrate a reasonable fear of persecution on account of a protected ground if they are returned to their home country. This typically applies to individuals who have been apprehended by immigration officials, either at a port of entry or within the United States, and are in imminent danger of being deported. Defensive asylum provides a final opportunity for individuals to present their case for protection before an immigration judge.

The key difference between affirmative and defensive asylum lies in the timing and context of the application. While both require individuals to prove a genuine fear of persecution based on protected grounds, defensive asylum occurs during deportation procedures, making it a crucial last resort for those facing removal.

Key Eligibility Criteria for Defensive Asylum

To qualify for defensive asylum, applicants need to meet strict requirements. Firstly, they must show they have a genuine fear of persecution. This fear should be real and backed by good evidence. The fear has to be based on one of five reasons: race, religion, nationality, political opinion, or belonging to particular social group. After being granted asylum, they may later seek lawful permanent resident (LPR) status.

The applicant needs to provide proof that their fear relates to one or more of these reasons. It’s not enough to just say they are facing persecution; they must show how their fear connects to the protected reasons.

Finally, it is up to the applicant to prove their case. They need to give enough evidence to convince an immigration judge that their fear of persecution is real. This can be a difficult task that requires careful documentation and sometimes expert testimony.

The Process of Applying for Defensive Asylum

The process of requesting defensive asylum follows a structured legal pathway. It begins when an individual is placed in removal proceedings in U.S. immigration court. This can occur if they enter the country without proper documentation or violate the terms of their visa. During these proceedings, the individual must express their fear of persecution if returned to their home country, prompting the initiation of the defensive asylum process under the oversight of the U.S. government.

From Affirmative Failure to Defensive Filing

In some cases, an individual’s journey to asylum takes a new direction after an initial attempt is denied. If an asylum application is rejected by the United States Citizenship and Immigration Services (USCIS), the individual may then be placed in removal proceedings. During this time, they have the opportunity to apply again for asylum defensively.

Individuals Encountered at the Border

Individuals who are stooped at the border and express a fear of persecution in their home country may also get the chance to seek asylum in immigration court.  This process often begins with  a credible fear interview before an official with the Asylum Office of the U.S. Citizenship & Immigration Service.  It is meant to be a brief interview to see if the applicant can articulate the elements of a successful asylum case.  It is supposed to be a low burden of proof.  If the officer determines that the fear is credible, the individual will be referred to an immigration judge for a full hearing on their asylum claim.  An additional challenge in this process is that the asylum seeker is often detained for this interview.

Legal Proceedings in Immigration Court

Once an asylum seeker is in removal proceedings due to immigration violations, their case is heard in immigration court, overseen by the Executive Office for Immigration Review (EOIR). The immigration court operates independently with its own judges and procedures and is not a part of the Department of Homeland Security (DHS). An immigration judge from the Department of Justice presides over the removal proceedings.

During these proceedings, the asylum seeker—often represented by an immigration attorney—presents evidence and arguments to support their claim for protection. Meanwhile, the Department of Homeland Security (DHS) presents its case for why the individual should be deported. This is a formal and adversarial process in which the asylum seeker carries the burden of proof to demonstrate their eligibility for asylum.

Common Challenges and How to Overcome Them

Navigating the defensive asylum process can be challenging. One of the biggest obstacles is providing sufficient proof of persecution or the fear of it. Without clear and compelling evidence, it can be difficult to demonstrate that the fear is valid. It is crucial to gather as much supporting information as possible, including police reports, medical records, and credible reports about the conditions in the home country.  Nonetheless, the clear, consistent and detailed testimony of the applicant can be, in certain circumstances, sufficient to meet the burden of proof.

Additionally, immigration law and court procedures are complex, which can be overwhelming for those unfamiliar with the system. Having the guidance of an experienced immigration attorney can make a significant difference. An attorney can help navigate the legal process, build a strong case, and ensure that the individual’s rights are protected.

Documenting Persecution or Fear of Persecution

In defensive asylum cases, the applicant has the primary responsibility to prove their claim. This involves meeting a high standard of proof to demonstrate the fear of persecution. Collecting comprehensive documentation is essential, including police reports that document violence or harassment, medical records that show injuries related to the claims, and detailed personal accounts from both the applicant and witnesses.

Reports from credible sources, such as the U.S. Department of State or recognized human rights organizations, can also provide important context about the conditions in the applicant’s home country. These reports help establish that the threat of persecution is real and widespread. The more thorough and well-supported the evidence, the stronger the asylum case will be.

Navigating the Removal Proceedings

Facing removal proceedings can be daunting, especially for individuals unfamiliar with the immigration court system. Immigration courts are part of the Executive Office for Immigration Review (EOIR) and operate under their own set of rules, which differ significantly from those of criminal courts. Understanding these procedures is critical to building a strong defense.

Timing is also crucial, as applications and evidence must be submitted by strict deadlines. Attendance at all scheduled hearings is mandatory, often requiring careful planning and travel. An experienced immigration attorney can be invaluable during this process, helping the individual understand the complexities, comply with procedural requirements, and advocate on their behalf in court. Just as a knowledgeable guide is essential in unfamiliar terrain, an immigration attorney can provide crucial support during the complex journey of removal proceedings.

Role of Legal Representation in Defensive Asylum Cases

Hiring an immigration attorney is highly recommended for individuals seeking defensive asylum. The complexities of immigration law, combined with the adversarial nature of removal proceedings, mean that having legal support can be the difference between success and failure. It is especially important to consider hiring an attorney if you are unfamiliar with immigration law, have limited English proficiency, or feel overwhelmed by the legal requirements and deadlines.

An attorney can help you understand your rights, gather the necessary evidence, and prepare for court hearings. The earlier you seek legal assistance, the better prepared you will be to navigate the process effectively. Contact immigration attorneys at Benach Collopy, who are among the leading attorneys in the U.S. successfully advocating asylum cases in immigration courts.

How an Attorney Can Strengthen Your Case

An experienced immigration attorney can significantly strengthen your defensive asylum case by providing expert guidance and representation. They can help you collect and present evidence in a way that meets the high standards required in immigration court. This includes gathering police reports, medical records, witness statements, and country condition reports that are essential to demonstrating a credible fear of persecution.

Additionally, an attorney can represent you during hearings, cross-examine witnesses presented by the government, and provide compelling legal arguments on your behalf. Their knowledge of immigration law and court procedures allows them to anticipate challenges and respond effectively, ensuring that your case is presented in the strongest possible light. Having an attorney by your side increases your chances of success and provides invaluable support during a challenging and often overwhelming process.

Take the Next Step: Secure Your Future

Defensive asylum can be a crucial lifeline for those facing persecution or fearing harm in their home countries. Understanding the application process, eligibility requirements, and the legal steps involved is key to building a successful case. 

If you are considering applying for defensive asylum, now is the time to seek professional help. Contact the experienced immigration attorneys at Benach Collopy today to discuss your situation and get the support you need. You don’t have to face this journey alone—let us help you secure your future.