Affirmative vs. Defensive Asylum: Which One Applies to You?

For those seeking safety in the United States, the path to asylum can feel complex. Living in or near Schaumburg, IL, you might wonder about the different ways to seek protection. We understand these concerns and want to clarify the two main avenues: affirmative asylum and defensive asylum. Knowing the difference is the first step in understanding your potential legal journey.

What is Asylum?

Asylum protects individuals who have fled their home country and are unable or unwilling to return due to a well-founded fear of persecution. This fear must be based on one of five protected grounds: race, religion, nationality, membership in a particular social group, or political opinion. The United States offers this crucial protection under both federal and international law.

When considering asylum, it’s vital to act promptly. Generally, you must file your asylum application within one year of your arrival in the United States. There are limited exceptions to this one-year filing deadline, but these are often difficult to prove. For example, changed circumstances in your home country or extraordinary circumstances that prevented timely filing could be considered.

Affirmative Asylum: Seeking Protection Proactively

Affirmative asylum is when you apply for asylum directly with U.S. Citizenship and Immigration Services (USCIS), which happens when you are not currently in removal (deportation) proceedings. You are proactively seeking protection from the U.S. government.

Who Files for Affirmative Asylum?

Typically, individuals who arrive in the U.S. and are not detained or facing deportation proceedings will file an affirmative asylum claim, which might include someone who entered on a valid visa and then realized they could not safely return home. It also applies to individuals who may have entered without inspection but are not yet in immigration court.

The Affirmative Asylum Process

The process begins with filing Form I-589, Application for Asylum and for Withholding of Removal, with USCIS. After filing, you will likely receive a receipt notice and a notice for a biometric services appointment. This appointment is where USCIS collects your fingerprints and a photograph for background checks.

Next, USCIS will schedule an asylum interview for you. This interview is a critical part of the process. An asylum officer will ask you questions about your application, your fear of persecution, and your personal history. While you can attend this interview alone, having legal representation from an attorney can be very beneficial. Your attorney can help you prepare, clarify points, and ensure your story is presented effectively.

If the asylum officer grants your asylum, you will be able to live and work in the United States. One year after being granted asylum, you can apply for lawful permanent residence (a green card). If your application is not granted, and you are not in lawful immigration status, your case will generally be referred to an immigration judge for defensive asylum proceedings.

Defensive Asylum: Protection in Removal Proceedings

Defensive asylum comes into play when you are already in removal (deportation) proceedings before an Immigration Judge in the Executive Office for Immigration Review (EOIR). Instead of proactively seeking asylum from USCIS, you are presenting asylum as a defense against deportation.

Who Files for Defensive Asylum?

Individuals facing defensive asylum proceedings often fall into a few categories, which include people who were apprehended at the border seeking entry. It also applies to those who overstayed a visa and were later picked up by Immigration and Customs Enforcement (ICE). If USCIS did not grant your affirmative asylum application and you are not in a lawful status, your case would also proceed to defensive asylum.

The Defensive Asylum Process

The defensive asylum process begins after the Department of Homeland Security (DHS) issues a Notice to Appear (NTA). This document alleges that you are removable from the United States. You will then have hearings before an Immigration Judge. During these hearings, you can present your asylum claim as a defense.

You will file Form I-589 with the Immigration Court. The judge will hear testimony from you and any witnesses. They will also review any evidence you submit to support your claim, which is an adversarial process, meaning a DHS attorney will often argue against your asylum claim. Having an experienced attorney by your side is essential to navigate these complex court procedures and present the strongest possible case.

After hearing all the evidence and arguments, the Immigration Judge will issue a decision. If the judge grants asylum, you receive protection. If the judge denies asylum, you may have the option to appeal the decision to the Board of Immigration Appeals (BIA).

Key Differences and Why They Matter

The primary distinction between affirmative and defensive asylum lies in where and when you file your application.

• Affirmative asylum is filed with USCIS when you are not in removal proceedings. It is generally a less formal, non-adversarial process.
• Defensive asylum is filed with an Immigration Court when you are already in removal proceedings, which is a more formal, adversarial court process.

Understanding this difference is critical because the setting, procedures, and pressures are distinct. In Schaumburg, IL, and elsewhere, the legal strategies for each type of asylum can vary significantly. An attorney can help you determine the correct path and prepare you for the specific challenges of either process.

Need Guidance on Your Asylum Claim in Illinois?

If you are in Schaumburg, IL, or the surrounding communities and are considering seeking asylum, we are here to help. Whether you believe affirmative or defensive asylum applies to you, understanding your options is paramount. We invite you to reach out to Metcalf & Associates, P.C. Our dedicated team is ready to offer the compassionate and informed legal support you deserve.

Contact us today at 224-328-1900 for a confidential consultation. Let us help you understand your rights and guide you through your asylum journey.