Defensive Asylum

Seeking Protection from Harm in your Home Country

When a person is in removal proceedings, either because they came without inspection and were processed by CBP, or because their affirmative asylum application was referred to the Immigration Court, they may be eligible to file a defensive asylum application.

Asylum is a status available to those who meet the definition of a “refugee” according to the 1951 Refugee Convention. In other words, those who are afraid to return to their home country because they fear will suffer persecution on account of their race, religion, nationality, political opinion, or membership in a particular social group.

Each of these requirements have a specific meaning under U.S. asylum law, and successfully arguing a claim for asylum requires an intricate understanding of each. That is why it is important to consult with an attorney if you are thinking about pursuing a claim for asylum.

When you apply for asylum defensively, you are provided with the opportunity to argue your case before an Immigration Judge. In this situation, your case is more like a trial that you see on TV, with a judge, witnesses, evidence exhibits, and attorneys for both sides. Due to the backlog of the Immigration Courts, this process can take many years to complete.

Seeking asylum is available to anyone, regardless of how you entered the country. Generally, you must apply for asylum within one year of your entry, however, certain exceptions to this rule may apply. If you win your case, you will be eligible for lawful permanent resident status (Green Card) after one year. In some cases, you may also be eligible to receive a work permit while the asylum is pending.

However, it is important that you do not file an asylum application without merit, as a judge may decide that you barred from obtaining future relief under immigration law because of a frivolous filing.

Real Stories

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FAQ

Frequently Asked Questions

I am a victim of domestic violence in my country can I apply for asylum?

Seeking asylum based on severe domestic violence may be possible. It will be necessary to show that the violence that has been committed against you is related to one of the enumerated protected groups. Frequently, attorneys argue victims of domestic violence fall within a Particular Social Group. But being a victim of domestic violence does not necessarily mean one will qualify for asylum. Each case has to be analyzed on its own merits, so a private consultation is essential before determining availability of relief.

I am scared to go back to my country, do I qualify for asylum?

You need to find out if the harm you fear in your country is protected under American refugee law. If the persecution you fear or have experienced is related to your race, religion, nationality, membership in a particular social group, or political opinion you may be able to qualify for asylum. Examples of persecution are rape, kidnapping, inability to earn income, female genital mutilation, torture, and inability to practice your religion.

Is there a deadline to applying for asylum?

Yes! You must apply for asylum within one (1) year of arrival in the U.S. unless you have a good reason for delay. But even if more than one year have elapsed, it is important you consult with an attorney as your case may fit within one of the exceptions to the one-year deadline. Moreover, even if you don’t qualify for asylum, you may still be able to apply for withholding of removal.

What kind of persecution qualifies?

You must fear future persecution. If you suffered past persecution, the asylum office may assume that you also fear future persecution. Your fear of persecution must be based on one or more of the following items: Race, Religion, Nationality, Membership in a particular social group, or Political opinion.

What are some examples of persecution?

Some examples that MAY qualify as persecution are killing, torture, kidnapping, domestic violence, rape, female genital mutilation, and inability to practice your religion.