If you’re facing deportation or removal proceedings in the United States, you might still be able to apply for Defensive Asylum. Unlike affirmative asylum, this option is the last line of protection for non-citizens. And because it’s a complex request, hiring an immigration lawyer to help you understand the immigration court asylum process is crucial.
Here is what you need to know before you apply.
What Is Defensive Asylum?
Defensive asylum is a legal defense for those already in removal proceedings. It’s an asylum application, not to initiate legal status but to prevent deportation. This strategy is called “defensive” because it’s the applicant’s legal defense against being removed from the United States.
An Immigration Judge (IJ) will review the application during a court hearing. Because the defensive process is adversarial, the Department of Homeland Security (DHS) will work to remove you, while your immigration lawyer will present a case for why you should be allowed to stay.
Understanding the Immigration Court Asylum Process
You must demonstrate the following to be granted asylum:
- A well-founded fear of persecution
- Persecution based on race, religion, nationality, political opinion, or membership in a social group
- Government perpetration or inability to protect
You must also prove that you’re not barred from asylum for committing crimes or posing a national threat. Need more details? Contact the immigration lawyers at Lamb & Turner to discuss your case.
When to Apply
You can apply for Defensive Asylum if you were caught entering the United States without proper documentation or referred to an immigration judge. You may also be eligible if you were denied affirmative asylum or are currently in removal proceedings for any reason, including visa overstay or criminal convictions.
Defensive Asylum Step-by-Step
Step 1: Receive a Notice to Appear (NTA)
The immigration court asylum process starts with a Notice to Appear from DHS. It lists the charges against you and requires you to appear before an IJ. Don’t ignore this notice, as failure to appear could result in the judge issuing an automatic removal order.
Step 2: Attend the Master Calendar Hearing
Your first court date is a Master Calendar Hearing, where you’ll confirm your information, acknowledge the charges, and inform the judge of your intent to apply for Defensive Asylum. If you don’t have an immigration lawyer, you can request more time to find one.
Step 3: Submit Form I-589
You must submit a Form I-589 — Application for Asylum and for Withholding of Removal —to formally apply for Defensive Asylum. This document includes information about why you’re afraid to return to your home country, history of persecution, and supporting documents like medical records, witness statements, and country condition reports.
Applicants must file Form I-589 within one year of their last entry into the United States unless they qualify for an exception. Consult an immigration lawyer for more information.
Step 4: Attend the Individual Hearing
The court will schedule an Individual Merits Hearing once you submit Form I-589. You will testify under oath, and your immigration lawyer will present evidence and answer questions from the judge and government attorney.
Tips for a Strong Defensive Asylum Case
The key to a successful Defensive Asylum case is credibility. Any contradictions or lack of supporting evidence can hurt your claim. Here are some tips to help:
- Gather supporting documents — Human Rights letters, medical records, new articles, etc.
- Be honest — Ask your lawyer to help you tell your story without exaggerations.
- Stay consistent — Ensure your oral testimony aligns with your written application.
- Hire an immigration lawyer — Qualified legal counsel can help you prepare for court.
Applying for Defensive Asylum is a high-stakes procedure, and the immigration court asylum process can be overwhelming. Don’t face the challenges alone. Contact Lamb & Turner today.
