Defensive Asylum Procedures

Date of Information: 06/12/2025

Check back soon; we update these materials frequently.

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:

  1. Race

  2. Religion

  3. Nationality

  4. Political opinion

  5. 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

  1. Notice to Appear (NTA): The process begins when you are served with an NTA, which formally charges you with being removable.

  2. Master Calendar Hearing: A brief, preliminary hearing where the judge schedules future proceedings and ensures the applicant understands the process.

  3. Filing the Application: You must file Form I-589, Application for Asylum and for Withholding of Removal, with the immigration court.

  4. Individual Merits Hearing: A full hearing before a judge where you present your asylum claim, evidence, and witness testimony.

  5. 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.

Other Helpful Resources:

See Also:

Charles International Law’s research guides are always free, but if you find them helpful, please consider a donation or gratuity.