There are two paths to asylum in the United States: affirmative asylum for those proactively applying for protection, and defensive asylum for those seeking protection while in removal proceedings. Understanding which process applies to your situation helps you navigate the system effectively.
Affirmative Asylum
Affirmative asylum is when you apply for protection before the government tries to deport you. You file an application with USCIS (U.S. Citizenship and Immigration Services) and attend an interview with an asylum officer. This is generally the path for people who arrived legally or are otherwise present in the US without being in removal proceedings.
The affirmative process is non-adversarial—there's no prosecutor arguing against you. The asylum officer evaluates your case and makes a decision.
Defensive Asylum
Defensive asylum is a defense against removal (deportation). If you're in immigration court facing removal, you can request asylum as a form of relief. The immigration judge decides your case in an adversarial proceeding where a government attorney argues the case against you.
Defensive asylum typically applies to people apprehended at the border, those whose visas expired and who were placed in removal proceedings, and affirmative applicants referred to immigration court after asylum officer denial.
The Affirmative Process
Step 1: File Form I-589 (Application for Asylum and Withholding of Removal) with USCIS within one year of arriving in the US. Include supporting documents and evidence.
Step 2: Biometrics appointment for fingerprinting and background checks.
Step 3: Asylum interview with an asylum officer. The interview is typically informal—you, your attorney if you have one, the officer, and an interpreter if needed. The officer asks about your claim and assesses credibility.
Step 4: Decision. The officer either grants asylum, refers the case to immigration court (for those without legal status), or issues a denial (for those with other legal status who can appeal through different channels).
The Defensive Process
In immigration court, you appear before an immigration judge. A government attorney (ICE counsel) argues against your claim. You or your attorney present evidence and testimony. Witnesses can testify. The judge makes a decision.
Defensive proceedings are more formal and adversarial than affirmative interviews. You face cross-examination and must respond to government arguments.
Key Differences
Decision-maker: Asylum officers (USCIS) in affirmative cases; immigration judges (DOJ) in defensive cases. Adversarial nature: Affirmative interviews are non-adversarial; defensive proceedings have opposing counsel. Formality: Affirmative interviews are less formal; defensive proceedings follow courtroom procedures.
Referral to Immigration Court
If an asylum officer doesn't grant your affirmative application and you lack other legal status, your case is referred to immigration court. This isn't necessarily a denial—it means the judge will decide. Many cases granted by judges were first referred by asylum officers.
Referral to court means starting the defensive process—you'll receive a Notice to Appear and eventually have hearings before an immigration judge.
Credible Fear and Reasonable Fear
People apprehended at the border or placed in expedited removal may first receive credible fear or reasonable fear screenings. Passing this initial screening allows you to pursue defensive asylum in immigration court. It's a lower standard than the full asylum standard.
Processing Times
Affirmative asylum processing varies dramatically—from months to years depending on the asylum office and current backlogs. Defensive proceedings also take years in most immigration courts due to massive backlogs. Prepare for a long process regardless of path.
Work Authorization
After your asylum application is pending for 150 days (plus time for any delays you caused), you can apply for employment authorization. This applies to both affirmative and defensive applicants.
Appeals
If the immigration judge denies asylum, you can appeal to the Board of Immigration Appeals (BIA). Further appeals go to federal circuit courts. The appeals process adds years but can result in reversals.
Getting Legal Help
Both affirmative and defensive processes benefit enormously from legal representation. Studies show represented applicants succeed at much higher rates. Many nonprofit organizations provide free asylum representation.