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Affirmative versus defensive asylum in the U.S.

Sometimes a person chooses to come to the U.S. to avoid persecution or torture in their nation of origin. There are two types of asylum that a person in the Jackson metro area can seek: affirmative asylum and defensive asylum.

Affirmative asylum

Affirmative asylum may be an option when a person is physically present in the U.S., regardless of how they arrived, and is not facing removal proceedings. A person can apply for asylum within one year of the date they last arrived in the U.S. However, one can apply for asylum at a later date if there is a change in circumstances or extraordinary circumstances that materially affect a person’s eligibility for asylum or otherwise led to a delay in filing and the person filed for asylum within a reasonable amount of time.

Those seeking affirmative asylum will submit Form I-589 with the U.S. Citizenship and Immigration Services (USCIS), and they will have to attend a non-adversarial interview. A person seeking affirmative asylum can reside in the U.S. while their application is being processed.

Defensive asylum

A person seeking asylum must seek defensive asylum if they been placed in removal proceedings by an asylum officer, is facing removal for immigration violations or who attempted to enter the U.S. without the necessary documentation but still has a credible fear of persecution or torture.

A defensive asylum application will be sent to the immigration judge overseeing the applicant’s case. The applicant will have a court-like hearing before a judge with the Executive Office for Immigration Review (EOIR). This is an adversarial hearing. The applicant can be represented by an attorney. The immigration judge will determine if the applicant is eligible for asylum or any other forms of relief.

Learn more about asylum

Ultimately, this post does not contain legal advice. Readers who want to learn more about asylum in the U.S. can explore our firm’s website for further information.