Defensive Asylum
Facing deportation and seeking protection in the U.S.?
Defensive asylum may be your path to safety, allowing you to remain in the U.S. and avoid removal.
What is Defensive Asylum?
It is a legal process for individuals already in removal proceedings who fear persecution or harm if returned to their home country. It is a defense against deportation, available to those who qualify for protection under U.S. asylum laws.
If granted, it provides the applicant with the right to live and work in the U.S., eventually leading to lawful permanent residency.
What are the requirements to file for Defensive Asylum with the Court?
Pending Removal Proceedings
You must already be in removal proceedings before an immigration court to file for a Defensive Asylum. If you are not in removal proceedings, go to our Asylum page for more information.
Fear of Persecution
You must demonstrate a well-founded fear of persecution in your home country based on race, religion, nationality, political opinion, or membership in a particular social group.
We can help you put together your asylum package, and decide the asylum category that fits your case.
Filing Form I-589
You must submit Form I-589, Application for Asylum and for Withholding of Removal, to the immigration court as a defense in your case, along with the evidence and a brief.
We can file directly with the immigration court through the ECAS system.
One-Year Filing Deadline
In general, you must apply for asylum within one year of your last arrival in the U.S., unless exceptions apply, such as changed or extraordinary circumstances.
No Bar to Asylum
You must not be subject to certain bars to asylum, such as having committed certain crimes, or being a threat to U.S. security.
Frequently Asked Questions
The key difference is in the timing and context of the application:
Defensive Asylum: Filed when someone is already in removal proceedings and is defending themselves from deportation.
Affirmative Asylum: Filed proactively with U.S. Citizenship and Immigration Services (USCIS) before any deportation proceedings have begun.
Anyone who is currently facing removal in immigration court and fears persecution or harm in their home country can apply for defensive asylum, provided they meet the eligibility requirements.
To apply, you must file Form I-589, Application for Asylum and for Withholding of Removal, with the immigration court. We can help you present your case during removal proceedings, where you will need to provide evidence to support your claim for asylum.
After applying, you will attend hearings before an immigration judge. You will have the opportunity to present evidence and testify about the persecution or harm you fear if returned to your home country. The judge will then decide whether to grant asylum or deny the request.
If your application is denied, you may be eligible to appeal the decision to the Board of Immigration Appeals (BIA). You can read more on our BIA appeal section. You could also pursue other forms of relief, such as withholding of removal or protection under the Convention Against Torture (CAT).
Yes, you may be eligible to apply for a work permit (Employment Authorization Document) if your asylum application has been pending for at least 150 days and no decision has been made.
While it’s not legally required to have an attorney, asylum cases are complex and having an experienced immigration lawyer greatly increases your chances of success. Our experienced immigration lawyers can help you gather the necessary evidence, represent you in court, and present a strong case to the immigration judge.
Need help with your defensive asylum case?
Contact our office today to schedule a consultation and learn how we can assist you in your fight to stay in the U.S.
