There are differences between Affirmative and Defensive asylum

On Behalf of | Aug 18, 2021 | US Immigration Law

Residents of San Antonio and other areas of Texas may want to learn more about the different types of asylum that the U.S. grants to those who seek refuge in our country. The Affirmative and Defensive versions are different, and the processing may not be same for the two types.

According to U.S. Citizenship and Immigration Services, there are major differences between the two types of asylum under our immigration laws.

Affirmative asylum

You must be physically present in the United States to obtain asylum through this type of process. Regardless of how you arrived here or your current immigration status, you may apply. It must be within one year of your arrival, according to U.S. immigration law.

The one-year period may change if there are extraordinary circumstances. The form you will need for filing for affirmative asylum is Form I-589.

Defensive asylum

You request this type of asylum when you are being removed from the U.S. It is a defense against removal. You must be in proceedings for removal within the immigration court. This is with the Executive Office for Immigration Review (EOIR).

Defensive asylum is usually by the following:

  • Referral when not eligible for affirmative asylum process
  • They are in removal proceedings after apprehension at a U.S. port of entry
  • They received apprehension by U.S. Customs and Border Protection (CBP) trying to enter the United States

In some cases, there must be a credible fear of persecution or torture by an asylum officer of CBP.

Defensive asylum cases get a hearing in a courtroom-like proceeding. Both you and the government attorney for U.S. Immigration and Customs Enforcement (ICE) will able to speak.