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Affirmative Asylum Applications vs. Defensive Asylum Applications: What's the Difference?

When applying for asylum, there are two types of asylum applications available to foreign nationals: the affirmative application and the defensive application. Deciding which application to use depends on whether or not formal removal proceedings have begun. While there are some similarities between the two types of asylum applications, there are distinct differences as well that every foreign national seeking asylum should know.

Similarities Between Affirmative and Defensive Asylum Applications

The overall goal of both the affirmative and the defensive applications is to provide asylum within the United States. Asylum allows a foreign national to escape specific types of persecution should he or she be forced to return to their home land. To qualify, the foreign national must be considered a refugee as defined by the Immigration and Nationality Act, and the persecution must fall under at least one of five protected characteristics.

Generally, in both types of applications, the refugee is already present in the United States and must take steps towards requesting asylum in America. However, this is where the similarities end between the two types of asylum applications.

Affirmative Asylum Applications

To affirmatively apply for asylum, a foreign national must submit Form I-589 to the United States Custom and Immigration Services (USCIS). When applying for affirmative asylum, a foreign national must be present in the United States. This application needs to be filed within a year of the foreign national's last arrival in America, unless the individual can show changed circumstances that affect his or her eligibility for asylum.

After filing, the foreign national then meets with an asylum officer who determines whether or not the case is approved. If it's not approved, the case is referred to an immigration judge.

Defensive Asylum Applications

For asylum processing to be defensive, on the other hand, the foreign national must be in removal proceedings in immigration court with the Executive Office for Immigration Review. In this immigration court, the judge will hear arguments from the foreign national (and his or her attorney, if represented) and an attorney from Immigration and Customs Enforcement.

If the immigration judge finds that the individual is eligible for asylum, then an order will be granted. If he or she is found ineligible for asylum, the immigration judge will determine if any other forms of relief from removal are available, including discretionary relief and adjustment of status. If no other relief is available, then the immigration judge will order the foreign national to be removed from the United States.

Main Differences Between Affirmative and Defensive Asylum Applications

The following table lays out the main differences between these two types of asylum applications:

 

Affirmative

Defensive

Removal Proceedings

If removal proceedings have not yet begun, then the foreign national should use an affirmative asylum application.

After an individual is placed in removal proceedings by either an asylum officer or for immigration violations, or qualifies for a credible fear interview, the individual must use a defensive asylum application.

How to Apply

The foreign national applies for asylum through Form I-589.

If the individual was referred by USCIS, the affirmative asylum application was already filed and will carry over to the immigration judge. If the individual hasn't submitted an asylum application, he or she will submit a defensive asylum application to the Immigration Judge.

Type of Hearing

Non-adversarial interview with an asylum officer

Adversarial, court-like hearing

Interpreters

Foreign national must provide own qualified interpreter

Immigration court provides a qualified interpreter for all proceedings.

Related Resources

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For those seeking asylum or refugee status, the stakes couldn't be higher; you want to make sure the application is done properly. If you or someone close to you is seeking asylum in the United States, it's in your best interests to consult with an experienced immigration attorney. Get a free immigration attorney match today.

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