Defensive Asylum vs Affirmative Asylum

The process for applying for asylum depends on whether you have already been placed in removal proceedings. If you have already been served with a Notice to Appear alleging that you are removable from the United States and that the Notice to Appear has been filed with the immigration court, you must apply for Asylum as a defense to removal from the United States. 

Defensive asylum applications are decided at the immigration court in an adversarial process before the Immigration Judge. An applicant for defensive asylum will testify at the immigration court about their fear of returning to their country of citizenship and will be subjected to questioning by the Immigration Court Judge as well as an immigration attorney representing the Department of Homeland Security. You will be expected to submit evidence in support of your asylum claim to the Immigration Court.

A person may also apply for asylum affirmatively regardless of their current immigration status in the United States and if that person is not currently in removal proceedings. An application for affirmative asylum is filed with USCIS (United States Citizenship and Immigration Services). Applicants for affirmative asylum will participate in an interview with an Asylum Officer. You will be expected to submit evidence in support of your asylum claim to USCIS.

If USCIS denies your application for asylum and you do not have other legal immigration status in the United States, you will be issued a Notice to Appear and placed in removal proceedings after USCIS denies the application. You may then have your asylum application heard by the Immigration Judge as a defense to removal from the United States. The process would then be the same as someone who initially applied for asylum as a defense to removal. The Immigration Judge will still issue a decision in your asylum case even though your case was previously denied by USCIS. The Immigration Judge will give your application de novo review, meaning that the Immigration Judge’s review of your case will be independent of the review already conducted by USCIS.

Whether you are applying for Asylum in Baton Rouge affirmatively or defensively, you must apply within one year from the date of your last arrival in the United States unless you can show a material change of circumstances has occurred in your country of citizenship since your last entry into the U.S.