Asylum serves as a vital mechanism for offering protection to individuals fleeing persecution in their home countries.
In the United States, there are two primary pathways for seeking asylum: affirmative asylum and defensive asylum. Understanding the differences between affirmative asylum vs defensive asylum and their pathways is crucial for those seeking refuge within the country.
In the below guide, we provide clear definitions of both processes, highlight their differences, and explain which method is suitable in various situations.
What is Affirmative Asylum?
Definition
Affirmative asylum is a process through which individuals who are physically present in the United States or at a port of entry apply for asylum with the U.S. Citizenship and Immigration Services (USCIS).
When looking at how to apply for asylum in USA, this is the preferred method because you aren’t engaged in any removal proceedings. Think of it as a blank slate where you entered the U.S. legally with authorization and want to start your journey to a better life without any complications.
Eligibility Criteria
To qualify for affirmative asylum, you must demonstrate a credible fear of persecution in your home country based on race, religion, nationality, political opinion, or membership in a particular social group.
You must also be physically present in the U.S. or at a port of entry and file Form I-589 within 1 year of arriving in the country.
What is Defensive Asylum?
Definition
Defensive asylum is pursued by individuals who are in removal proceedings before an immigration judge. It is a response to potential deportation and involves seeking sanctuary as a defense against removal from the country.
This is not the ideal route to take but it offers another viable option and a second chance at becoming an asylee in the U.S. It’s not ideal because of the circumstances in which you must apply for it.
Whereas with the affirmative option, you have a clean slate and less pressure, with the defensive option you are facing the threat of deportation so the odds are already stacked against you.
Eligibility Criteria
Similarly to affirmative sanctuary, if you are seeking the defensive option, you must establish a well-founded fear of persecution in your home country based on the same protected grounds. This option is also only available in one of the following situations:
- It’s been confirmed that you are not eligible for the affirmative path.
- You are in removal proceedings.
What are the Key Differences in Affirmative Asylum vs Defensive Asylum?
While both pathways lead to the consideration of an individual’s claim, they differ significantly in terms of process, burden of proof, approval rates, rights and privileges, renewal requirements, appeal rights, and legal representation.
The Process
The affirmative asylum process involves applying directly to USCIS, while the defensive option occurs within the context of removal proceedings before an immigration judge with the assistance of an asylum immigration attorney.
Burden of Proof
In the affirmative process, the burden of proof lies on the applicant to demonstrate eligibility, whereas in the defensive pathway, the burden shifts to the government to prove the individual’s ineligibility.
Approval Rates
Historically, approval rates for the affirmative option tend to be higher than for defensive sanctuary, reflecting differences in the adjudication process and evidentiary standards.
For example, the grant rate for affirmative applications has historically been around 40-50% for the last 10 years whereas the grant rate for defensive applications is traditionally lower than this.
Rights and Privileges
Individuals applying for affirmative sanctuary may be eligible for certain benefits and protections while their applications are pending, whereas those in defensive proceedings may face detention and limited access to resources.
Renewal Requirements
Affirmative recipients must apply for renewal after one year, whereas defensive recipients may have their status reviewed during ongoing removal proceedings. For both types of asylum seekers definition, you can also apply for a Green Card after 1 year providing you fit the eligibility criteria.
Appeal Rights
While both pathways offer the opportunity to appeal a denial, the procedures and timelines for appeal differ between affirmative and defensive cases.
With affirmative denials, your case is automatically referred to an immigration court. You will then get the chance to give additional testimony and provide more evidence to support your case. If the judge still denies your application, you can appeal to the Board of Immigration Appeals, and this must be done within 30 days of the judge’s ruling. The appeals chain can continue ultimately to the U.S. Supreme Court.
For defensive denials, you have 30 days to appeal to an immigration judge, but they also have the opportunity to appeal. The defensive option typically doesn’t follow the same chain as affirmative and if your initial appeal is denied, it most often results in deportation proceedings.
Legal Representation
Legal representation is crucial for navigating the complexities of both affirmative and defensive processes, but access to representation may vary depending on the pathway chosen.
For affirmative applications, you can have a legal representative during your interview and any hearings. Similarly, for defensive applications, you can have the best asylum lawyers near me represent you at the initial hearing.
When Should You Choose Affirmative or Defensive Asylum?
An asylum attorney can give you a definitive answer on which type of sanctuary is appropriate for your situation but it’s important to have a clear understanding of when either is necessary and this is what we explain below.
Affirmative Asylum
The affirmative pathway is appropriate if you are not yet in removal proceedings and wish to proactively seek asylum protection without the immediate threat of deportation. This is a proactive means of how to apply for asylum and it is the preferable method.
We always advise trying to utilize the affirmative option where possible because you are under less pressure and don’t have to deal with the potential of being deported or detained.
Defensive Asylum
The defensive option is typically pursued if you are already in removal proceedings and are using it as a defense against deportation. For example, you may have been caught at the U.S. border or port of entry without documentation and the U.S. Customs and Border Protection placed you in removal proceedings.
Alternatively, the defensive pathway may also be appropriate if you attempted the affirmative option but found that you were ineligible.
What to Expect During the Affirmative Asylum Interview
Unlike the defensive option, where you attend a court hearing, you attend an interview for the affirmative option. You will be sent an automatic notification of your interview date, and we advise that you try and avoid rescheduling this.
It is possible to reschedule, but you show more willingness if you attend the initial date requested by the USCIS. The interview takes place at your local USCIS branch and is conducted by a USCIS officer. Your asylum lawyer can be present at the interview, and it’s possible to bring witnesses, too, such as a family member.
Expect the interview to take a minimum of 30 minutes, but it can last longer depending on the authenticity of your case and how the USCIS officer reacts. It is their job to ascertain the authenticity of your case, so expect a grilling, and they may use intimidation tactics to try and test you.
You must always answer truthfully, be respectful, and consult with your asylum attorney if needed or if you are unsure of any of the questions. It’s important to bring the relevant documentation with you too which includes a form of identification, your Form I-94 (Arrival/Departure Record), and a copy of your completed Form I-589.
An asylum immigration lawyer near me can help you prepare for the interview, make sure you have all the relevant documentation, and understand what’s going to happen.
What Happens if You Enter the U.S. Without Proper Authorization?
When looking at affirmative asylum vs defensive asylum, it’s essential to understand what happens if you enter the country illegally and the impact it may have on applying for asylum.
Potential for Deportation
Individuals who enter the U.S. without proper authorization may face deportation proceedings, regardless of whether they pursue sanctuary or not.
Criminal Charges
Illegal entry into the U.S. can result in criminal charges, which may complicate or disqualify individuals from seeking sanctuary. There are generally two classifications of crimes for entering the country illegally:
- Illegal Entry – /8 U.S.C / 1325: This can be charged to anyone who enters the U.S. without a proper inspection at a port of entry or who makes false statements while trying to enter the country. First offenses can include a fine and up to six months in prison.
- Illegal Re-Entry – /8 U.S.C / 1326: This can be charged to anyone who attempts to reenter the U.S. after previously being denied admission, deported, or ordered removed. First offenses result in a maximum prison sentence of 2 years.
Impact on Future Asylum Eligibility
Entering the U.S. illegally can impact future eligibility, potentially leading to additional legal barriers or restrictions. For example, criminal charges due to illegal entry can hamper your chances of a successful application.
Affirmative vs Defensive Asylum – Understanding Your Options
Understanding the nuances between affirmative and defensive asylum is essential for individuals seeking protection in the United States. They both lead to the same end goal but are used in two very different circumstances, and the application process differs too.
Whether choosing affirmative or defensive asylum, it’s imperative to meet eligibility requirements, gather sufficient evidence, and seek legal representation. An attorney asylum expert can help you select the right type of sanctuary, make sure you are eligible, and guide you through the process from start to finish.
By navigating the asylum process effectively, you can secure the protection you need and build a brighter future in the United States.
FAQs
What are the statutory bars to asylum?
Certain criminal convictions, terrorist activities, and persecution of others can serve as statutory bars to asylum eligibility.
For criminal activity, you are denied your application for asylum if you’ve committed any serious crime, which includes all types of aggravated felony. You will also be denied if you have been “firmly resettled” in another country. For example, if you’ve had an application approved in another country but still applied for U.S. sanctuary, too.
What are the requirements for affirmative asylum eligibility?
Affirmative asylum applicants must demonstrate a well-founded fear of persecution based on protected grounds. These grounds include race, religion, political opinion, membership of a particular social group, and nationality. Additionally, you must be physically located in the USA and apply within 1 year of entering the country.
Can I apply for affirmative asylum if I entered the U.S. illegally?
Yes, individuals who entered the U.S. illegally may still be eligible to apply for the affirmative option. You may face additional challenges when trying to take this route though including deportation and criminal charges. We always recommend trying to enter the U.S. at an official port of entry.
How do I know if I should file an affirmative or defensive asylum application?
The decision to pursue affirmative or defensive asylum depends on individual circumstances, including whether removal proceedings have been initiated. If you are not in any removal proceedings and are physically located in the U.S., you should make the affirmative pathway your first option.
How long does the affirmative asylum process take?
The timeline for the affirmative asylum process can vary but generally ranges from several months to several years. The USCIS should process applications within 180 days of receipt however, there is a backlog which means this benchmark is rarely achieved. In some cases, the waiting time can be as long as 250+ days.
Is there an expedited process for affirmative asylum?
In certain circumstances, such as when an applicant is in detention, expedited processing of affirmative asylum applications may be available.
What should I bring to my affirmative asylum interview?
You should bring all relevant documents, evidence, and identification to your affirmative asylum interview. This includes a copy of your Form I-589, identification documents such as a government ID, passport, and birth certificate, and the original evidence you submitted with your application.
What happens during a defensive asylum hearing?
During a defensive hearing, the immigration judge reviews the applicant’s case and determines whether they qualify for asylum. An ICE attorney (Immigration and Customs Enforcement) will also provide evidence against your case to try and disprove your eligibility. This is why using an asylum immigration lawyer near me is vital to help build a solid case for your defensive asylum application.
Can I appeal a denial of affirmative or defensive asylum?
Yes, both affirmative and defensive asylum applicants have the right to appeal a denial of their asylum claim.
What happens if my affirmative asylum application is denied?
If an affirmative asylum application is denied, the applicant may be referred to immigration court for removal proceedings.
