Defensive Asylum Procedures
Date of Information: 06/12/2025
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What Is Defensive Asylum?
Defensive asylum is a form of protection sought as a defense against removal (deportation) from the United States. Unlike affirmative asylum—which is requested proactively through the U.S. Citizenship and Immigration Services (USCIS)—defensive asylum is requested only when an individual is already in removal proceedings before an immigration judge.
When Do You Apply?
You may apply for defensive asylum if:
You were apprehended by U.S. immigration authorities at or near the border and referred to court.
You were placed in removal proceedings after being denied affirmative asylum.
You were detained by Immigration and Customs Enforcement (ICE) after overstaying a visa or entering without inspection.
For more information on immigration detention, please consult our research guide on that topic.
Key Legal Framework
The right to seek asylum in the U.S. is grounded in:
The Immigration and Nationality Act (INA), particularly sections 208 and 241(b)(3)
International obligations under the 1951 Refugee Convention and its 1967 Protocol
To qualify for asylum, you must demonstrate a well-founded fear of persecution based on at least one of five protected grounds:
Race
Religion
Nationality
Political opinion
Membership in a particular social group
For more information on the asylum process generally, please see our research guides on those topics:
The Defensive Asylum Process
Notice to Appear (NTA): The process begins when you are served with an NTA, which formally charges you with being removable.
Master Calendar Hearing: A brief, preliminary hearing where the judge schedules future proceedings and ensures the applicant understands the process.
Filing the Application: You must file Form I-589, Application for Asylum and for Withholding of Removal, with the immigration court.
Individual Merits Hearing: A full hearing before a judge where you present your asylum claim, evidence, and witness testimony.
Decision: The judge will issue a decision—either orally at the hearing or in writing. You may appeal a denial to the Board of Immigration Appeals (BIA).
If You Retain Charles International Law, You Can Expect a Process that Looks Something Like This:
Detained vs. Non-Detained Applicants
If detained, your hearings may move quickly, sometimes within a matter of weeks. Non-detained cases may take months or years depending on the immigration court backlog.
For more information on immigration detention, please see our research guides on that topic:
Rights and Responsibilities
You have the right to an attorney, but the government will not provide one. Pro bono legal services are available in many jurisdictions.
You have the right to present evidence and call witnesses.
You must attend all hearings or risk being ordered removed in your absence.
You must not commit crimes, as some convictions can disqualify you from asylum.
Special Considerations
Unaccompanied Minors often have their own procedures and protections.
Credible Fear Interviews may lead to a defensive asylum case if the individual establishes a credible fear of return during expedited removal.
Common Challenges
Proving identity and past persecution without documentation
Explaining inconsistencies in testimony or past conduct
Navigating the process while detained or without legal counsel
Tips for Success
Prepare Early: Begin organizing your story, documentation, and legal support as soon as possible.
Be Honest and Detailed: The judge evaluates credibility. Your testimony can make or break your case.
Work with a Legal Advocate: This significantly increases the chance of a successful outcome.
Frequently Asked Questions About Defensive Asylum in Immigration Court
1) What is “defensive” asylum?
Defensive asylum is requested in Immigration Court (EOIR) as a defense to removal. You apply by filing Form I-589 with the court (and DHS), and an Immigration Judge decides your case after hearings.
2) How is defensive asylum different from “affirmative” asylum?
Affirmative asylum is filed first with USCIS when you’re not in removal proceedings. Defensive asylum is filed in court after DHS has started removal proceedings against you.
3) What hearings will I have—what’s a Master Calendar vs. Individual Hearing?
A Master Calendar Hearing (MCH) is a short status hearing about pleadings, deadlines, and scheduling. The Individual (merits) Hearing is your trial-style hearing where you testify and present evidence.
4) When do I file the I-589 in court?
The judge will set a filing deadline. You must serve DHS and file with the court (often via ECAS e-filing). Missing the deadline can cause procedural problems or abandonment findings.
5) Do I still have to complete biometrics?
Yes. After filing the I-589 defensively, you must complete biometrics/fingerprints when instructed. Keep your receipts and completion notices—courts often require proof.
6) What is the “asylum clock” and how does it affect work authorization (EAD)?
The asylum clock tracks days your application has been pending. Once it reaches 150 days, you may become eligible to apply for an EAD (work permit), subject to rules and any clock stops caused by delays you request.
7) What evidence should I submit and when?
Submit your personal statement, corroborating documents, country-conditions evidence, expert reports, and witness lists by the court’s evidence deadline. Late evidence may be excluded without good cause.
8) Will the court provide an interpreter?
Courts typically provide an interpreter for merits hearings if you request one and indicate your language. Always confirm your language needs in advance and at each hearing.
9) Can I ask to move my case to a different court (change of venue)?
Possibly. You can file a motion to change venue if you’ve relocated and can show good cause and proper address updates (EOIR-33). Venue changes can affect timelines.
10) What if I also qualify for withholding of removal or CAT protection?
You can seek asylum, withholding of removal, and Convention Against Torture (CAT) relief together. Withholding/CAT have different standards and benefits; your attorney can present all applicable forms of protection.
11) Can I get Prosecutorial Discretion (PD) or administrative closure?
In some cases DHS may exercise PD (e.g., dismissal) based on guidelines and equities. Administrative closure is limited and judge-dependent. Ask counsel whether PD could help in your situation.
12) What happens if I miss a hearing?
Missing a hearing can trigger an in-absentia removal order. If there was lack of notice or exceptional circumstances, act immediately to seek reopening.
13) How do detained cases work?
Detained defensive asylum cases move quickly. You may also request custody/bond review (separate rules apply). Evidence collection and deadlines are compressed—speed and organization are critical.
14) Can I testify remotely or appear by video?
Some courts use Webex/VTC for certain hearings. Policies vary by location and judge. Confirm your format in advance and prepare your tech, documents, and interpreter needs accordingly.
15) What if the judge denies my case?
You can file a BIA appeal by the strict deadline. Depending on the facts, you might also pursue motions to reopen/reconsider or a petition for review in federal court after the BIA decision.
16) How do children or family members fit into defensive asylum?
Spouses and certain children may be included as derivatives if eligible. Unaccompanied children (UCs) follow special procedures. Coordinate filings to protect everyone’s status and deadlines.
17) Do I need a lawyer for defensive asylum?
You’re not required to have one, but defensive asylum is litigation with tight deadlines, evidence rules, and complex relief. An experienced attorney can manage strategy, filings, and courtroom presentation.
Other Helpful Resources:
See Also:
CIL Guide to the Circumvention of Lawful Pathways Rule
