Understanding the difference between affirmative and defensive asylum can help you determine which one you can use. Affirmative asylum is when you are in the United States and request asylum because of fear of persecution or torture if you leave the United States as examples. A defensive asylum claim is something you would bring to defend against removal proceedings the U.S. government brought against you.
For years, Getachew & Ansari Immigration Attorneys, P.C. has helped dozens of people apply for and secure asylum. We understand how challenging it can be to go to a new country and navigate a confusing legal immigration process. Our team seeks to make your life easier by filling out the paperwork and guiding you through the application process in an empowering and effective way.
What Is Affirmative Asylum?
As explained by United States Citizenship and Immigration Services, affirmative asylum may be available to you if you are physically present in the United States. You do not have to have a specific immigrant status to qualify.
Typically, you have up to one year from the date that you arrive in the United States to apply for affirmative asylum. However, United States laws have a few exceptions that you may be able to use to request asylum if more than one year has passed from your arrival date.
You may have to appear at a hearing before a judge at the Department of Justice’s Executive Office for Immigration Review (EOIR). A hearing may be necessary if the government denies your asylum request and you cannot obtain legal immigrant status.
What Is Defensive Asylum?
If you face removal, one of your options to defend against this process is to claim asylum. When you do this, it is referred to as a defensive asylum claim. You can be placed in the removal process if the United States government believes that you violated its immigration laws or denies your affirmative asylum claim. According to the USCIS, you can also enter into the defensive asylum process if you are part of an expedited removal or have a credible fear and the government gave you a Notice to Appear.
Key Differences Between Affirmative and Defensive Asylum
An affirmative asylum claim is something that you initiate while you are still in the United States.
Additionally, it is usually outside of the context of a removal proceeding. Instead, you apply for it on your own within one year of arriving in the United States.
In contrast, a defensive asylum claim is something that you assert after the government tries to remove you from the United States. If the government denies your original asylum request, this is another way for the proceedings to transition to a defensive asylum case.
Who Is Eligible for Affirmative Asylum?
You may be eligible for an affirmative asylum claim if you have been in the United States for one year or less. You also need to prove that you are in fear of returning to your country due to the threat of torture or persecution for example. The government may not require you to have a specific immigration status like an immigrant visa to apply for affirmative asylum. In other words, you may not have to secure a different type of immigration status or visa before you qualify to apply for asylum.
Who Needs Defensive Asylum?
Defensive asylum is something that may come up if the U.S. government is trying to remove you from the United States. In this context, you use an asylum claim to defend yourself against being removed. Someone may need this defense if they are in removal proceedings because the government accuses them of breaking an immigration law or rejects their affirmative asylum request.
How To Transition From Affirmative to Defensive Asylum
One of the biggest differences between an affirmative and defensive asylum claim is whether the person is in removal proceedings. A defensive asylum case may arise if the government seeks to remove the person from the United States. In other words, it applies if they are currently defending themselves against removal. In contrast, an affirmative asylum claim is something the person files for before removal proceedings begin.
Common Challenges in Both Types of Asylum Cases
Seeking a defensive or affirmative asylum claim can be very challenging. These types of requests require you to show that you are in fear of being tortured or persecuted if you leave the United States. This can be a high bar that can be difficult to meet.
Additionally, people may have difficulty filing this claim within one year of arriving in the United States because they are so focused on settling there after fleeing another country. Because people can only file this type of request when they are physically in the United States, another challenge may be finding a safe way to get to the U.S.
Benefits of Legal Representation in Affirmative vs. Defensive Asylum
Trying to navigate the asylum process on your own can be very challenging and add a significant layer of stress to your life. Working with a qualified immigration attorney can help ease your mind by providing personalized recommendations and support.
Lawyers who work with asylum claims understand the complex web of rules involved. They also know how to research the latest procedural updates and help prepare you for the application and interview process. They can also help you challenge a denial of your asylum claim.
Contact an Experienced Asylum Lawyer
If you are seeking asylum in the United States, you need the female-owned law firm of Getachew & Ansari Immigration Attorneys, P.C. Medya Ansari’s passion for helping asylum-seekers began in law school, where she advocated for children and detained women through Boston’s CARA Pro Bono Project. Get in touch with Medya today by calling 408-292-7995 to schedule a no-obligation consultation.
