What is Defensive Asylum under the Laws of the United States?

Defensive asylum is a form of asylum application that occurs when an individual is already in removal proceedings in the United States and seeks protection from deportation. This process is used by individuals who are in the U.S. and face removal but are seeking asylum as a defense against deportation.

Here’s a breakdown of how defensive asylum works:

Key Points of Defensive Asylum

1. Initiation of Process: Defensive asylum applications are made in the context of removal proceedings. This means the individual is already in deportation or removal proceedings before an immigration judge.
2. Filing for Asylum: The asylum seeker files for asylum with the immigration court handling their removal case. The application is part of the defensive strategy to avoid deportation by proving eligibility for asylum.
3. Eligibility Criteria: To qualify for defensive asylum, the applicant must meet the same eligibility criteria as for affirmative asylum, which includes demonstrating a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion in their home country.
4. Process: The asylum seeker will present their case before an immigration judge. This involves submitting evidence, attending hearings, and sometimes appearing before an asylum officer for an interview.
5. Burden of Proof: The applicant bears the burden of proof to demonstrate that they meet the criteria for asylum. This includes showing that their fear of persecution is credible and well-founded.
6. Outcome: If the immigration judge grants asylum, the individual can remain in the U.S. and eventually apply for permanent residency. If denied, they may appeal the decision or face deportation, depending on their legal options and circumstances.
7. Legal Representation: It is highly recommended for individuals in defensive asylum proceedings to seek legal representation due to the complexities of immigration law and the high stakes involved in preventing deportation.

In summary, defensive asylum is a mechanism for individuals already in removal proceedings to seek asylum as a way to remain in the U.S. and avoid deportation, by demonstrating a well-founded fear of persecution.