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What Is the Difference Between Affirmative and Defensive Asylum?

 Posted on September 23, 2022 in Immigration

TX immigration lawyerEvery year, thousands of immigrants come to the United States because they fear that they will suffer harm if they remain in another country. In these situations, immigrants may be able to request asylum by demonstrating that they have a credible fear that they or their family members will experience persecution because of their race, religion, nationality, political opinion, or membership in a particular social group. While the process of seeking asylum can be daunting, it is important to know that there are two different types of asylum seekers in the United States: those who apply for asylum affirmatively, and those who apply for asylum defensively.

What Is Affirmative Asylum?

An individual may actively seek asylum by going through the proper channels at a port of entry or U.S. Citizenship and Immigration Services (USCIS) office. A person can apply for asylum within one year after entering the United States. Applying for affirmative asylum is generally considered the best option, as it gives applicants the chance to explain their situation to an asylum officer, and it provides more flexibility in terms of timing and eligibility requirements.

In order to be eligible for affirmative asylum, applicants must meet the following criteria:

  • The applicant must be physically present in the United States.
  • The applicant must satisfy the definition of a “refugee” as defined in the Immigration and Nationality Act (INA).

What Is Defensive Asylum?

In defensive asylum cases, an individual may apply for asylum as a defense against removal proceedings that have already been initiated by the Department of Homeland Security. In other words, an immigrant may fight deportation by claiming that they would face persecution if they were sent back to their home country. Because removal proceedings have already begun, applicants generally have less time to prepare their case, and they may be subject to stricter eligibility requirements.

In some cases, an immigrant may be placed in expedited removal proceedings after being taken into custody by immigration officials within 14 days after entering the United States. In these situations, a person may be interviewed by an asylum officer to determine whether they have a credible fear of persecution or torture if they are returned to their home country. If the officer determines that they do have a credible fear, an Asylum Merits Interview may be scheduled to determine whether they qualify for asylum, or they may appear at a hearing before an immigration judge as part of the defensive asylum process.

Contact Our Dallas Asylum Lawyers

If you are seeking asylum in the United States, it is important to understand the difference between affirmative and defensive asylum. Both are means of protection from being deported, but each has its own set of advantages and disadvantages. When applying for asylum, immigrants are more likely to be successful if they are represented by a qualified and experienced lawyer. At John W. Lawit, LLC, we have assisted numerous immigrants and family members in cases involving asylum and other forms of humanitarian relief, and we can help you determine the best options for protecting your family's safety and maintaining a legal status in the U.S. Contact our Grand Prairie immigration and deportation defense attorneys at 214-609-2242 to schedule a consultation today.


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