Distinctions Between Affirmative and Defensive Asylum Proceedings
Date of Information: 06/12/2025
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Welcome to Charles International Law
At Charles International Law, we understand that navigating the U.S. asylum process can be overwhelming. Whether you are considering applying for protection or are already in proceedings, understanding the key differences between affirmative and defensive asylum is critical. This website will guide you through the legal processes, timelines, risks, and strategic considerations involved in both forms of asylum.
What Is Asylum?
Asylum is a protection granted to foreign nationals who are already in the United States or are arriving at the border and who meet the definition of a refugee: someone who is unable or unwilling to return to their home country due to past persecution or a well-founded fear of future persecution based on race, religion, nationality, political opinion, or membership in a particular social group. For more information on asylum generally, please consult our other research guides on those topics:
The Asylum Process in the United States
Applying for asylum in the United States involves one or more of two processes: (1) affirmative asylum; of (2) defensive asylum. The affirmative asylum process is run by the U.S. Citizenship and Immigration Services (“USCIS”). The defensive asylum process is determined by the Immigration Courts, run by the U.S. Justice Department’s Executive Office for Immigration Review, and the Office of the Principal Legal Advisor, an agency within the Department of Homeland Security that acts as a quasi-prosecutor scrutinizing and arguing against a grant of asylum. The process you start with usually depends on how you get to the United States. Moreover, the Immigration Courts act as a form of appeal when USCIS denies a person’s asylum application.
Affirmative Asylum
What Is Affirmative Asylum?
Affirmative asylum is initiated voluntarily by the applicant. It is handled by U.S. Citizenship and Immigration Services (USCIS) and must be filed within one year of arrival in the United States (with limited exceptions). The process is non-adversarial, meaning you are not in removal (deportation) proceedings when you apply.
Key Features:
Filed with USCIS via Form I-589
Interviewed by an asylum officer
May include dependents (spouse and children under 21)
If denied, and no legal status remains, case may be referred to immigration court for defensive asylum
Benefits:
Less adversarial process
Opportunity to gather and present evidence with legal representation
Chance to remain in the U.S. during review
Defensive Asylum
What Is Defensive Asylum?
Defensive asylum is requested as a defense against removal in immigration court. This form of asylum is only available to individuals who are already in removal proceedings, often following apprehension at the border, visa overstay, or denial of another immigration benefit.
Key Features:
Initiated during removal proceedings before an Immigration Judge
Adversarial in nature — the government is represented by an attorney
Filed via Form I-589 with the Immigration Court (EOIR)
Requires in-court testimony, legal arguments, and potentially expert witnesses
Risks:
Potential for deportation if asylum is denied
Legal burdens are higher, and the environment is more confrontational
Comparison Chart:
What Do I Need for My Asylum Process
Whether you are filing affirmatively with USCIS or defending against removal in immigration court, preparing the right documentation and evidence is crucial to the success of your asylum case. Fortunately, the kinds of evidence necessary does not vary widely between the affirmative and defensive asylum processes.
Below is a list of evidence you should compile and links to questionnaires collecting other information your attorney will need to effectively represent you.
Documentation Checklist
As soon as possible, please submit the following documents to your attorney:
Forms and Questionnaires
Your attorney needs information that is not necessarily contained in the documentation requested in this guide. Some of it goes into the I-589. Other information is necessary for CIL to properly open your file and check for conflicts of interest. Still other information is required to serve as the starting point for investigating the country conditions underlying your reasonable fear of persecution. As soon as practicable, please complete the following forms:
Other Helpful Resources:
See Also:
CIL Guide to the Circumvention of Lawful Pathways Rule
