Understanding Defensive Asylum


Removal proceedings create anxiety and uncertainty for people who have or want to make the United States their home. It is especially scary for people who have a real fear of returning to their home country. For those of you with a well-founded fear of persecution, you may have a defense to the removal proceedings.

At The Trevino Law Firm, PLLC, our attorneys handle affirmative and defensive asylum cases. These cases can be time-consuming because you must build a solid case to satisfy the elements of your defense. To learn more about it, contact our immigration lawyers today at 210.2273200, and we will schedule a consultation to discuss your case.

Understanding the Asylum Process in the United States

The asylum process allows individuals who have fled their home country because they have been persecuted or fear persecution to seek protection in the United States.

An asylee is a refugee in the United States or at a U.S. port of entry when seeking protection. Section 101(a)(42) of the Immigration and Nationality Act defines a refugee as a person with a well-founded fear of persecution in their home country based on their: 

  • Race
  • Religion
  • Nationality
  • Membership in a particular social group
  • Political opinion

There are two pathways to seeking asylum in the United States:

  1. Affirmative asylum, where the applicant is not yet subject to removal proceedings; and 
  2. Defensive asylum, where the applicant applies for asylum as a defense to removal proceedings before an immigration court. 

If you are granted asylum via the defensive asylum process, you can apply for a green card (permanent residency) one year after being granted protection. 

Three Ways to Seek Defensive Asylum

Defensive asylum is available in three different situations: 

  1. Where you have applied for affirmative asylum and the U.S. Citizenship and Immigration Services (USCIS) did not granted asylum, the USCIS will refer your case to an immigration court for determination. 
  2. Where you are in removal proceedings after being arrested by the U.S. Immigration and Customs Enforcement (ICE) for living in the United States without the necessary documentation. 
  3. Where you are in removal proceedings after requesting asylum at a port of entry or crossing the border without the necessary legal documents. In these circumstances, you face expedited removal proceedings. Before you can go to an immigration court, you must have a “credible fear interview” with an asylum officer to determine whether you have a credible fear of persecution. If the officer believes you qualify for asylum, they will refer your request to an immigration court. If the officer rejects your asylum application, you will be deported unless you request a decision review. 

How to File for Defensive Asylum

Asylum cases are all different, so the process may not be quite the same for each case. There are certain aspects of the process, though, that are the same. Here is an overview of the Defensive Asylum process. 

Initial Hearing

The first step in the defensive asylum process is a master calendar, or initial, hearing. If you have a lawyer, the judge will list your matter for merits, or final, hearing. 

If you do not have a lawyer, the court provides you with a list of pro bono (free) lawyers and lists your matter for another interim court date. 

Asylum Application

If you were apprehended at a port of entry or by ICE while living illegally in the United States, you must file a Form I-589, Application for Asylum and for Withholding of Removal. You do not need to file this form if you have been referred to a court by USCIS following an affirmative asylum application. 

You file a Form I-589 with the court that hears your application. You must file it within one year of your arrival in the United States unless you can show that either (1) circumstances have changed affecting your eligibility for asylum; or (2) extraordinary circumstances caused the delay.

The judge may direct you to file the form sooner. It is important to follow any directions the judge gives you on timeframes to ensure your case progresses

Supporting Documents

Before your final hearing, you can submit supporting evidence to the court and update your Form I-589 if any details have changed. 

Evidence that may support your asylum claim includes:

  • Your personal statement
  • Medical records
  • Expert reports
  • Human rights reports
  • Evidence of the persecution you suffered in your home country. 

For example, you can provide photos, witness statements, or police reports. 

The judge will give you a deadline to file these documents, typically 15 days before your final hearing. 

Biometrics Notice

After filing your petition, you need to attend an Application Support Center (ASC) for your fingerprints to be taken by the USCIS. 

Merits Hearing

At the individual, or merits, hearing, the judge hears the evidence and decides your case. Your attorney will question you, allowing you to explain why you fled your country and fear returning. 

The government attorney will also question you. The judge may ask questions throughout the hearing. 

You can call witnesses to support your case, like friends or family who can speak about your experiences or a country expert who can explain the risks of returning to your country. 

The judge may give a decision on the day of your hearing, but it can also be delayed until a later time. 

Three Reasons to Hire an Asylum Lawyer

Asylum is a way for people who have a real fear of persecution to find protection from that persecution in the United States. Asylees come from all over the world, and they make the United States their home––whether temporarily or permanently. But to get that protection, you have to comply with immigration law and, sometimes, persuade a judge. Because it's your life or your loved ones' lives at stake, filing for asylum on your own is not a good option. 

Hiring an asylum lawyer can be the single most important thing you do to protect your life, and here are three reasons why that is true.

  1. Paperwork. We are thorough when it comes to preparing and supporting your documents. We are also persuasive in the manner in which we tell your story using the facts and the law.
  2. Interview. During your interview, time is limited and you have a lot to say. We help make sure that all the essential facts of your case are clearly outlined. We want the interviewer to have a thorough understanding of your situation and that the fear of persecution you have is real.
  3. Efficiency. We know what documents we need. We know the arguments to make. We have the insight that flows from our experience and we employ that insight in each unique case to make sure you have solid evidence and a well-prepared application. 

Contact Us Today 

It is important to speak to an asylum attorney so that you know what to expect and can successfully go through the defensive asylum process to avoid removal. At The Trevino Law Firm, PLLC, our immigration lawyers can discuss your case with you. Contact us to schedule a consultation either by calling us at 210.227.3200 or using the online form.

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At The Treviño Law Firm, PLLC, we focus on Immigration law and we are here to listen to you and help you navigate the legal system.

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