You can apply for defensive asylum if you are in removal or deportation proceedings. During those proceedings, would claim asylum as a defense to being removed from the United States.
Removal proceedings occur in Immigration Court before an Immigration Judge. Those courts and judges are part of the Executive Office for Immigration Review (EOIR), which is a part of the U.S. Department of Justice (DOJ).
Step 1: Attend the Master Calendar hearing
These steps summarize what you can expect to happen during the Master Calendar hearing. Generally, the Master Calendar hearing will be your first hearing in Immigration Court.
At that hearing, the U.S. government representatives will state their charges against you stating that you are removable from the United States, based on the grounds in the Notice to Appear that the government had sent you earlier (Form I-862). After the government states the charges, you can present your request for relief through asylum (along with other forms of relief you can ask for, such as withholding of removal, and relief under the Convention Against Torture (CAT).
The judge usually will hear several cases at once during your Master Calendar hearing, which means you may have to wait until your turn. Your own hearing might be several only minutes long. The hearing might take place with you appearing in the court in person—though this might have changed because of the COVID-19 pandemic—or if you are being detained, through remote video. If you are in court, wait until the clerk of the court calls your case, at which point you should join the judge’s table. The court can also provide an interpreter if you cannot participate in English.
During the hearing the Immigration Judge will state the charges against you—essentially, that you are being removed from the U.S. because you are a noncitizen and have no valid basis for staying in the U.S. You should admit the facts if they are true and accurate. To qualify for asylum, you also should “concede removability” on at least one ground the Immigration Judge stated—asylum only applies if, without asylum, you would be removable from the U.S.
The Immigration Judge then will ask if you would like to be removed to another country. You should answer “no,” since you are requesting the court not to return you to your home country. You should state that you would like to remain in the United States.
Afterward, the Immigration Judge will ask what kind of relief you are seeking. Answer (depending on your circumstances): “asylum, withholding of removal, and relief under the Convention against Torture.” The Immigration Judge will note your response in the record, then will set another Master Calendar hearing when you can submit your asylum application (I-589) in court. The Immigration Judge might also ask if you will require an interpreter.
Step 2: Second Master Calendar hearing
The Second Master Calendar hearing is when you submit your asylum application (I-589) in court. At that hearing, bring three copies of your application—give one copy to the judge, one copy to the U.S. government attorney, and keep one copy for your own records.
After you file your I-589 in court, the Immigration Judge may schedule a “call-up date,” which is a deadline for you to submit any additional documents. The judge will then schedule your Individual Hearing–the full hearing when you can testify, present witnesses, and be cross-examined about your asylum claim.
Step 3: Individual Hearing
The Individual Hearing is the full hearing on the merits of your asylum claim. It is formal and adversarial—meaning the hearing happens before the Immigration Judge, and there is a trial attorney from the U.S. government, who will try to show you are not eligible for asylum. You would be sworn in to testify. You can also call witnesses to support your claim. Your responsibility (and your attorney’s) is to prove your claim. This is your opportunity to tell your story and explain why you should be granted asylum.
Before the hearing, be prepared from your affidavit, and expect difficult questions from the government attorney. Prepare all your witnesses. Make sure your documents (including your biometrics) are in order, and that you have complied with the Immigration Judge’s deadlines, including the call-up date; and that you have all the appropriate motions (as needed). In advance, also review the official Immigration Court Practice Manual) published by DOJ.
Before the hearing, and especially if you have an attorney, you may file a legal brief to support your claim. The brief does not become part of the record, but it would be helpful for your attorney and the government’s attorney to discuss any difficult issues that might come up in your case.
During the hearing, the judge will directly examine you and ask you questions about your past, your fear of persecution, and other information about your background. Speak clearly and truthfully. The government’s attorney then will cross-examine you to look for problems with your case—such as any inconsistencies in your story, contradictory documents, your identity, criminal history, and other issues related to your fear of persecution. Then you can present other witnesses who can support your case.
Usually, the Immigration Judge will decide your claim that same day. Once the Immigration Judge issues the decision, and if you unfortunately lose your claim, you should request to preserve your right to appeal. The judge will then give both you and the government’s attorney an order form ordering your removal or stating the relief you were granted, such as asylum, and whether you preserved your right to appeal. Keep that order form as it will be the only proof of your immigration status until you eventually receive an I-94 or employment authorization.