In the complex landscape of U.S. immigration law, seeking asylum can take two distinct paths: affirmative and defensive asylum applications. These processes are crucial for individuals fleeing persecution and navigating the intricate legal framework designed to protect them.

Affirmative Asylum Application Process

The affirmative asylum process is intended for individuals not currently in removal proceedings. Applicants proactively submit their case to the U.S. Citizenship and Immigration Services (USCIS), a division of the Department of Homeland Security (DHS). During this process, applicants present evidence of persecution and their reasons for seeking refuge. If the USCIS asylum officer denies the application, the individual may be referred to removal proceedings, where they can renew their asylum request through the defensive process before an immigration judge.

Defensive Asylum Application Process

Conversely, the defensive asylum process is for individuals already in removal proceedings, often due to being apprehended in the U.S. without proper documentation or violating immigration status. In this process, asylum is sought as a defense against removal. Applicants file their asylum application directly with an immigration judge at the Executive Office for Immigration Review (EOIR) within the Department of Justice.

Access to Legal Representation

Both affirmative and defensive applicants have the right to legal representation. However, it is important to note that, unlike in criminal court, the government does not provide attorneys in immigration proceedings for those unable to afford counsel. Therefore, securing competent legal representation is vital for successfully navigating the asylum process.

Alternative Forms of Protection: Withholding of Removal and CAT

Beyond asylum, there are additional protections for individuals facing persecution. Withholding of Removal and relief under the Convention Against Torture (CAT) offer alternatives for safeguarding individuals from deportation.

1. Withholding of Removal: This protection is available to individuals who can demonstrate a likelihood of encountering persecution if returned to their home countries based on race, religion, nationality, membership in a particular social group, or political opinion. While those granted withholding of removal are not eligible for a green card, they can remain and work legally in the U.S.
2. Relief under CAT: Individuals who fear torture in their home countries may qualify for relief under CAT by proving they are more likely than not to face torture, either directly by the government or with its acquiescence, if returned.

Conclusion

Understanding the distinctions between affirmative and defensive asylum applications, along with alternative forms of protection, is essential for individuals seeking refuge from persecution in their home countries. These processes provide critical avenues to secure safety and protection in the United States amid the complexities of immigration law.

If you need help with your asylum case, call Tavil Law 407-457-2095 or email us at tavillawpa@gmail.com.