Defensive Asylum

This page provides general information about the defensive asylum process in the United States. Please note that there are two paths to obtain asylum in the U.S. The affirmative asylum process is for individuals who are not in removal proceedings and the defensive asylum process is for individuals who are in removal proceedings. 

If you choose to file for asylum, we strongly encourage you to seek the assistance of a lawyer or an agency authorized to represent immigration applicants. As the laws are complicated, it is important to obtain legal assistance before you file for asylum, if possible. Please note our office does not provide direct representation to asylum-seekers, either in their immigration proceedings or in any legal matter.

For individuals who fear return to their home country, there are a few defenses against removal that they may choose to raise in their cases in order to remain in the U.S. These defenses include, but are not limited to, asylum, withholding of removal, and relief under the Convention Against Torture. The following materials offer information on these forms of protection, but they are not a substitute for legal counsel.

Asylum, Withholding of Removal and Relief under the Convention Against Torture

Asylum is a form of protection which allows an individual to remain in the United States instead of being removed to a country of feared persecution. To apply for asylum in the U.S., individuals must obtain and complete the required application, form I-589, and submit it with the appropriate attachments. The form can be obtained by calling the Department of Homeland Security (DHS) Forms Line at 1-800-870-3676, from DHS on the internet at www.uscis.gov, or from an agency authorized to represent immigrants.

U.S. immigration law requires that asylum-seekers apply for asylum within one year of arrival in the United States, unless they can demonstrate extraordinary circumstances for the delay or changed circumstances that significantly affect their eligibility for asylum. Individuals who file late must explain the reason for the delay in filing and may be denied the opportunity to apply for asylum.

Expedited Removal Proceedings, Reinstatement of Removal, and Administrative Removal

There are multiple types of processes that the U.S. Government can use to remove or deport an individual from the United States. Individuals who have been apprehended by DHS in the interior of the U.S. beyond the border area, have not been previously ordered removed, and have not been convicted of an aggravated felony, may be in removal proceedings before an Immigration Judge. Such individuals in removal proceedings who would like to apply for asylum may do so before the Immigration Judge.

Credible Fear

Individuals apprehended by Customs and Border Protection at a port of entry without valid documentation or within 100 miles of the border in the first two weeks after crossing it without valid documentation may be in expedited removal proceedings. Individuals in expedited removal proceedings may not be allowed to appear before an Immigration Judge unless they express a fear of return to their home country. Such individuals will then be interviewed by an asylum officer to determine if the individual has a “credible fear” of persecution or torture in the individual’s native country.

Individuals found to have a “credible fear” of persecution or torture will have their cases referred to the Immigration Judge for full consideration of the individual’s request for asylum, withholding of removal, and relief under CAT. Any criminal convictions that individuals have may affect the form of relief they are eligible to receive. If the asylum officer decides during the credible fear interview that the individual does not have a credible fear of persecution or torture, the individual may request a review of this decision by an Immigration Judge.

Reasonable Fear

Individuals with a prior order of removal may be in reinstatement of removal proceedings. Individuals convicted of an aggravated felony may be in administrative removal. Individuals who have been placed in either of these proceedings may not be allowed an opportunity to appear before the Immigration Judge unless they express a fear of being returned to their native country. Such individuals will then be interviewed by an asylum officer to determine if the individual has a “reasonable fear” of persecution or torture in the individual’s native country.

Individuals found to have a “reasonable fear” of persecution or torture will have their cases referred to an Immigration Judge for full consideration of the request for withholding of removal -- either withholding of removal traditionally available to refugees or relief under the Convention Against Torture. Any criminal convictions the individual has may affect the form of relief that person is eligible to receive. If the asylum officer decides during the reasonable fear interview that the individual does not have a reasonable fear of persecution or torture, the individual may request a review of this decision by an Immigration Judge.

Defensive Asylum Resources

Note: The organizations that have prepared these documents are located in different parts of the United States. They may have developed certain resources for people in proceedings in a specific state. Therefore, please verify that you have the correct addresses for any submissions or visits made to government offices. The guidance provided regarding the affirmative asylum process in general, however, applies to people across the United States, and is not state specific.

General Information​

• Factsheet: Relief and Protections Based on Fear of Persecution or Torture (2009): Executive Office for Immigration Review
• Asylum Information Guide: U.S. Citizenship and Immigration Services Asylum Program
• Refugee and Asylum Flow Chart (2010): Human Rights First
• Emerging Trends in Asylum Law (2013): United Nations High Commissioner for Refugees
• Overview of Asylum Process Flow Chart
• Pro Se Asylum Manual (2016): Political Asylum/Immigration Representation Project (PAIR), Massachusetts Law Reform Institute and Greater Boston Legal Services*
• Basic Procedural Manual for Asylum Representation Affirmatively and in Removal Proceedings (2017): National Immigrant Justice Center
• Convention Against Torture Information Sheet (2003): United Nations High Commissioner for Refugees
• Information about Asylum, Withholding of Removal, and the Convention Against Torture: Pennsylvania Immigration Resource Center
• How to Apply for Asylum, Withholding of Removal, and/or Protection under Article 3 of the Convention Against Torture (2011): Florence Immigration and Refugee Rights Project, Inc.**
• Guide to Credible and Reasonable Fear Proceedings (2013): Florence Immigration and Refugee Rights Project, Inc.**

Related Information​

• Information about Expedited Removal and Reinstatement of Removal (2007): Florence Immigration and Refugee Rights Project, Inc.**
• Pro Se Guide to Voluntary Departure (2013): Florence Immigration and Refugee Rights Project, Inc.**
• Options for Release from Detention for Asylum Seekers
• How Crimes May Affect Your Immigration Case
• Particularly Serious Crime Bars on Asylum and Withholding of Removal (2011): Immigrant Defense Project
• What Should You Expect from Your Legal Representative: Executive Office for Immigration Review (EOIR)
• How to Protect Yourself from Immigration Fraud: Executive Office for Immigration Review (EOIR)
• Immigration Basics: The One-Year Filing Deadline (2015): Immigration Equality
• Practice Advisory: Administrative Removal under 238(b) (2017): National Immigration Project

Helpful Resources​

• Obtaining Asylum in the United States: Affirmative vs Defensive Asylum: U.S. Citizenship and Immigration Services 
• Preparing for Your Asylum Interview: U.S. Citizenship and Immigration Services 
• ICE Community Helpline: U.S. Department of Homeland Security
• Questions & Answers: Reasonable Fear Screenings: U.S. Citizenship and Immigration Services 
• Questions & Answers: Credible Fear Screening: U.S. Citizenship and Immigration Services 
• Immigration Court Proceedings: Immigration Equality
• ICE ERO Detention Reporting and Information Line: U.S. Department of Homeland Security
• Have you been seperated from you child(ren)?: U.S. Department of Homeland Security

Forms

• I-589, Application for Asylum and for Withholding of Removal: U.S. Citizenship and Immigration Services
• I-589 Instructions: U.S. Citizenship and Immigration Services
• Worksheet to help prepare application for Asylum, Withholding of Removal, and Convention Against Torture (2003): Florence Immigration and Refugee Rights Project, Inc.**

*The materials by PAIR were written specifically for individuals near Boston, MA and therefore include addresses for government offices in that geographic area. If you live elsewhere in the United States, verify the correct address for any submissions or visits made to government offices.

**The materials by FIRRP were written for individuals in removal proceedings who are applying for asylum before an immigration judge. The guidance provided regarding preparation for your court case and testifying before a judge also applies to individuals applying for asylum at the Asylum Office during an asylum interview.