When foreign nationals come to the United States seeking asylum, there are two different applications available to them. Which one is right for any particular migrant depends upon whether removal proceedings have begun against them. Some parts of each asylum application are the same, but there are also very important differences that each person must carefully consider.
Both affirmative and defensive asylum applications are an attempt by a refugee to escape persecution in their home country and live in the United States legally. An affirmative application requires that the asylum seeker currently reside in the U.S., and the application must be filed within the first year of arriving. An asylum officer will decide whether or not the application is approved. If rejected, the case will be sent to an immigration judge.
A defensive asylum application requires that the asylum seeker currently be in removal proceedings in immigration court. During a court appearance, arguments can be made by both the refugee, or their lawyer, and an attorney from Immigration and Customs Enforcement. A judge can grant asylum right in court if they find the applicant eligible. If they do not grant asylum, they may be able to provide some kind of relief from removal. This can include adjustment of status and discretionary relief.
When an asylum seeker faces removal proceedings in immigration court, they have the right to mount a deportation defense with help from an attorney. A lawyer might help their client through every step of the process, including filling out Form I-89 and making arguments in front of a judge during removal proceedings. Because the immigration court system can be complicated, clients may benefit from professional legal help.
