In the complex landscape of U.S. immigration law, defensive asylum is an important mechanism for individuals facing deportation to seek protection from persecution in their home countries. Unlike affirmative asylum, which allows individuals not in removal proceedings to proactively apply through U.S. Citizenship and Immigration Services (USCIS), defensive asylum is a legal defense used during removal proceedings in immigration court. This article examines the defensive asylum process, its eligibility criteria, procedural steps, and its significance in today’s immigration context, supported by current data and authoritative sources.
What is Defensive Asylum?
Defensive asylum is a form of relief sought by individuals who are already in removal proceedings before the Executive Office for Immigration Review (EOIR), the agency within the U.S. Department of Justice responsible for immigration courts. Removal proceedings typically begin when the Department of Homeland Security (DHS) issues a Notice to Appear (NTA) charging an individual with being removable under the Immigration and Nationality Act (INA). Defensive asylum serves as a counterclaim, allowing the individual to seek protection rather than face removal.
Individuals enter the defensive asylum process in one of two primary ways:
- USCIS referral: After an unsuccessful application for asylum, USCIS may refer the case to an immigration judge if the applicant is found ineligible for asylum but still faces removal.
- Apprehension by DHS: Individuals apprehended by U.S. Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP)-often for lack of valid documentation or violation of immigration status-are placed in removal proceedings and may then defensively apply for asylum.
For example, migrants apprehended at the U.S. border without proper documentation and placed in expedited removal proceedings can apply for asylum if they express a credible fear of persecution. If an asylum officer confirms this fear, their case is referred to an immigration judge for a full defensive asylum hearing.
Eligibility Criteria for Defensive Asylum
To qualify for asylum, whether affirmative or defensive, applicants must meet the definition of a refugee under INA § 208. This requires a showing of a “well-founded fear of persecution” based on one of five protected grounds: race, religion, nationality, membership in a particular social group, or political opinion. The Supreme Court has interpreted “well-founded fear” to require at least a 10% probability of persecution, a relatively low threshold compared to other forms of relief such as withholding of removal (American Immigration Council, “Asylum in the United States” https://www.americanimmigrationcouncil.org/research/asylum-united-states).
Key eligibility requirements include
- Physical Presence: Applicants must be physically present in the U.S. or at a port of entry.
- One-Year Filing Deadline: Under INA § 208(a)(2)(B), asylum applications generally must be filed within one year of arrival, with exceptions for “changed circumstances” (e.g., deteriorating conditions in the home country) or “extraordinary circumstances” (e.g., serious illness). Failure to meet this deadline can result in ineligibility for asylum, although applicants may still be eligible for withholding of removal or protection under the Convention Against Torture (CAT).
- No safe third country agreements: Recent policies, such as the 2019 agreements with Guatemala, El Salvador, and Honduras, may render some applicants ineligible if they passed through a “safe third country” without seeking asylum there, although enforcement varies.
Criminal history can also affect eligibility. Certain convictions – such as aggravated felonies – bar asylum but may not preclude withholding of removal or CAT relief, which have higher evidentiary standards but offer narrower protections.
Procedural Steps in Defensive Asylum
The defensive asylum process unfolds in the adversarial setting of immigration court, as opposed to the non-adversarial interviews of the affirmative process. Here’s a step-by-step overview based on current practice:
- Initiation of removal proceedings: DHS issues an NTA, which schedules a hearing before an immigration judge. As of March 2025, the immigration court backlog is approximately 1.5 million cases, a significant portion of which are asylum claims (Council on Foreign Relations, “How the U.S. Asylum Process Works,” https://www.cfr.org/backgrounder/how-us-asylum-process-works).
- Filing Form I-589: The individual files Form I-589, Application for Asylum and for Withholding of Removal, with the immigration court. Unlike affirmative applications to USCIS, this must be filed with EOIR, often under tight deadlines set by the court (USCIS, “Obtaining Asylum in the United States” https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/obtaining-asylum-in-the-united-states).
- Master Calendar Hearing: An initial hearing sets the schedule for further proceedings and acknowledges receipt of the asylum application. Failure to attend this hearing may result in an order of removal in absentia.
- Merits Hearing: The heart of the defense process, this hearing allows the applicant to present his or her case. The Immigration Judge hears testimony, reviews evidence (e.g., identification documents, evidence of persecution), and considers arguments from both the applicant (or his or her attorney) and the ICE attorney representing the government. Interpreters are provided as needed.
- Decision: The judge issues a decision that may grant asylum, deny asylum but grant alternative relief (e.g., withholding of removal), or order removal. In fiscal year 2022, 36,615 individuals were granted asylum, with defensive cases making up a significant portion (American Immigration Council, “Asylum in the United States”).
- Appeal: If denied, the applicant has 30 days to appeal to the Board of Immigration Appeals (BIA). Further appeals to federal courts are possible, but rare due to cost and complexity.
Current data and relevance
The defensive asylum process has become increasingly important amid record border crossings and evolving enforcement policies. In fiscal year 2023, USCIS found credible fear in 53,965 cases, many of which were referred to immigration court for defensive proceedings. This reflects a rebound from pandemic-era lows, though the backlog continues to delay resolutions-often for months to years (American Immigration Council, “Asylum in the United States”). The Biden administration’s 2022 rule, which allows USCIS officers to adjudicate some credible fear cases, was intended to alleviate this pressure, but most defensive cases remain under the purview of EOIR (USCIS, “Obtaining Asylum in the United States”).
Politically, defensive asylum is a flashpoint. Former President Donald Trump’s pledge to restrict access to asylum, reiterated in 2024, underscores ongoing debates over border security and humanitarian obligations (Council on Foreign Relations, “How the U.S. Asylum Process Works”). Meanwhile, advocates argue that detention-common in defensive cases-undermines fair hearings, with studies showing that detained applicants are nearly five times less likely to secure counsel, a critical factor in success.
Expert Insights and Challenges
The adversarial nature of defensive asylum places a heavy burden on applicants, many of whom lack legal representation. Unlike criminal proceedings, the U.S. government does not provide attorneys, leaving most to navigate complex laws on their own or rely on pro bono services. The Immigrant Legal Resource Center notes that representation is the single most important factor in case outcomes (ILRC, “Removal Defense,” https://www.ilrc.org/removal-defense). In addition, judicial discretion varies widely, with approval rates varying by court and judge, as tracked by Syracuse University’s TRAC data
The process also intersects with broader trends in immigration enforcement. New EOIR regulations in 2024 allow judges to administratively close or terminate proceedings in some cases, offering a potential lifeline to applicants, though DHS opposition may complicate this relief (ILRC, “Removal Defense”).
Conclusion
Defensive asylum remains an important, if challenging, avenue for protection during removal proceedings. Its eligibility hinges on meeting the refugee definition and meeting strict deadlines, while its procedural rigor tests applicants in an overburdened system. With a backlog of 1.5 million cases as of March 2025 and shifting political winds, defensive asylum exemplifies the tension between U.S. humanitarian commitments and enforcement priorities. For those facing deportation, it offers a lifeline-albeit one that requires resilience, evidence, and often expert legal support-to ensure safety in the United States.
References
- American Immigration Council, “Asylum in the United States” URL: https://www.americanimmigrationcouncil.org/research/asylum-united-states Provides data on asylum grants, credible fear statistics, and legal standards.
- Council on Foreign Relations, “How the U.S. Asylum Process Works” URL: https://www.cfr.org/backgrounder/how-us-asylum-process-works Details the immigration court backlog and the political context of asylum policy.
- U.S. Citizenship and Immigration Services (USCIS), “Obtaining Asylum in the United States” URL: https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/obtaining-asylum-in-the-united-states Outlines the procedural steps and eligibility requirements for defensive asylum.
- Immigrant Legal Resource Center (ILRC), “Removal Defense” URL: https://www.ilrc.org/removal-defense Offers expert insight on legal representation and changes in EOIR regulations.
