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Affirmative Asylum vs. Defensive Asylum

If you are seeking asylum in the United States, you should know that there are two different types of asylum applications available to immigrants: The affirmative application, and the defensive application. Both are similar, but there are also some key differences that you should know about when choosing which application is the best fit for you.

The application that you decide to use will depend on whether formal removal proceedings have begun. For foreign nationals who are wondering whether to use an affirmative or defensive application, these are the biggest differences and similarities:

Similarities

  • Both applications aim to provide asylum to the United States
  • To qualify, the foreign national must be considered a refugee
  • The refugee must experience persecution in their country of origin
  • Usually the applicant is already in the United States

Differences

  • Affirmative Asylum Applications

To affirmatively apply for asylum, you must be present in the United States, and the application must be submitted within a year of your last arrival in the U.S. After you file a Form I-589, you will have a meeting and interview with an asylum officer. If the officer does not approve your case, it will be decided by a judge. If your case gets to this point and you do not speak fluent English, you will need to provide your own interpreter.

  • Defensive Asylum Applications

If you are in the midst of removal proceedings, then you will submit a defensive application to an immigration judge. In immigration court, the judge will hear your case and decide whether you are eligible for asylum. If so, then an order for asylum will be granted; but if not, the removal process will continue. An interpreter will be provided for you by the court system if you do not have your own.

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  • American Immigration Lawyers Association
  • State Bar of California | California Board of Legal Specialization
  • Avvo
  • Orange County Bar Association
  • Irvine Chamber