Affirmative Asylum vs Defensive Asylum

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    When you have a clear-cut case for political asylum in the United States, you still need a solid application to be granted asylum with no opposition. That’s called affirmative asylum. But when your first attempt is thwarted and you must appeal an asylum officer’s rejection, you then present a defensive asylum case. An immigration attorney’s involvement can make a big difference. To ensure the best chance of being granted asylum in the U.S., call Kats Immigration Law before you even leave home.

    What Are the Key Differences between Affirmative and Defensive Asylum?

    Affirmative Asylum vs Defensive Asylum in Brooklyn NYCCases of affirmative asylum are handled through immigration as non-adversarial, whereas defense cases are heard in a courtroom. For example, you can apply for permanent residency if an asylum officer grants you asylum, but if the officer doesn’t approve your application, your case is referred to an immigration judge, and you enter the defensive asylum process.

    You may appeal the court’s decision to the Board of Immigration Appeals (BIA). You then present your application as a defense against deportation during removal proceedings. You get to remain in the United States throughout the asylum process until a final decision is made.

    It’s advantageous to have an experienced asylum immigration expert on your side to guide you and ensure your rights are upheld. Find that expertise at Kats Immigration Law in NYC. Lead attorney Alina Kats has successfully represented hundreds of asylum seekers and helped them get resettled in the United States. Through a virtual consultation, learn about which type of asylum may best suit your situation, such as asylum:

    How Do I Apply for Affirmative Asylum?

    You need to prepare and file Form I-589, Application for Asylum and for Withholding of Removal, which you can download from the U.S. Citizenship and Immigration Services (USCIS) website. Make sure you meet the eligibility criteria for asylum before you begin the application process. You must prove that you have faced persecution or have a fear of persecution due to the type of asylum you seek. The application process for an affirmative asylum claim includes:

    • Gathering all necessary supporting documents like details about your experiences and fears, proof of persecution, reports of the situation in your home country, your passport and visa
    • Filling out Form I-589 completely and accurately and mailing it with supporting documentation to the appropriate USCIS Service Center based on your location
    • Attending the biometrics appointment after receiving a notice from USCIS, to provide your photograph, signature and fingerprints for background checks and identity verification
    • Preparing for your asylum interview with an asylum officer who reviews your application and supporting documents and asks questions about your experiences and fears of returning to your home country

    You must bring all original documents and a complete copy of your application on the day of your interview. Always be honest and detailed in your responses to the asylum officer’s questions. The officer then reviews your case and makes a decision, which USCIS mails to you.

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    What’s the Master Calendar Hearing in Defensive Asylum Claims?

    If your affirmative asylum application is rejected, USCIS forwards your case to an immigration judge for removal proceedings. Your first appearance before the immigration judge is called a Master Calendar Hearing when you respond to the charges against you.

    When your removal proceedings start, you receive a Notice to Appear (NTA) that identifies the charges against you and the reasons for your removal. You may have the chance to explain why you should not be removed and seek other forms of relief. Common removal defenses include:

    The judge then sets dates for future hearings where the merits of your case will be heard. This could include a hearing for your asylum application or other forms of relief you request. You must be aware of the dates for future hearings and make sure to attend them; if you miss a hearing, the removal orders could be issued against you. You may need to collect additional documentation, prepare your asylum application and complete other required actions.

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    How Can an Asylum Attorney Assist with Affirmative and Defensive Asylum Claims?

    An immigration attorney is a crucial ally for you in both scenarios, whether you’re applying under affirmative asylum or need help with removal defense. Your lawyer assesses your situation and determines whether you meet the criteria for asylum. Factors considered include the harm you faced in the past or the fear of facing them again if you go back to your home country.

    Your asylum attorney helps you gather and organize critical documentation for the types of asylum claims you’re eligible for. The lawyer explains all stages of the process, including:

    • Preparing the application form I-589
    • Avoiding common mistakes
    • Keeping you on track with important dates
    • Responding to Requests for Evidence (RFEs) queries
    • Filing the application on time
    • Handling denials

    When you receive an NTA initiating removal proceedings, an attorney can also help you understand the charges against you and prepare your defense. They make sure you’re ready for your Master Calendar Hearing. An attorney may offer you other services for your defensive asylum claim such as:

    • Explaining procedural aspects of immigration court
    • Developing a strong defense
    • Cross-examining witnesses and responding to arguments
    • Seeking alternative relief

    Kats Immigration Law in New York City offers legal representation for asylum seekers. Their certified asylum attorneys know the ins and outs of immigration law and stay updated on the latest changes and rulings that can affect your case. Contact Kats Immigration Law in Brooklyn or Manhattan to secure a safe future in the United States.

    Kats Immigration Law

    2365 Nostrand Avenue,
    Suites 106, 107,
    Brooklyn, NY 11210
    (973) 626-1177

    Updated on Dec 2, 2024 by Alina Kats (Immigratioon Lawyer) of Kats Immigration Law