The “affirmative” process and the “defensive” process describe the two ways an individual may apply for asylum in the US.
Affirmative Asylum
Under the affirmative process, a noncitizen who is not currently in removal proceedings may apply for asylum through the U.S. Citizenship and Immigration Services (USCIS), part of the Department of Homeland Security. If a USCIS asylum officer denies the asylum application and the applicant does not have valid immigration status, the officer refers that person for deportation. In the course of deportation proceedings, the applicant can again apply for asylum “defensively,” while before an immigration judge.
Defensive Asylum
A person currently in removal proceedings can defensively apply for asylum with an immigration judge at the Department of Justice’s (DOJ) Executive Office for Immigration Review (EOIR). Asylum, in that instance, is used as a defense against being removed from the United States. The EOIR does not provide attorneys to represent individuals in immigration court.
The Typical Process
Both the affirmative and defensive processes require applicants to be physically present in the United States. Asylum seekers who enter the U.S. without inspection are usually processed through the defensive asylum process, since those individuals would usually be subject to deportation, but apply for asylum during their deportation proceedings.
Asylum seekers have the burden of proving they meet the definition of a “refugee.” Throughout the affirmative and defensive processes, asylum seekers must provide significant evidence showing either past persecution or a “well-founded fear” of future persecution in their home country. The applicant’s own testimony plays a significant role.
Two factors generally bar asylum for applicants: those who have failed to apply for asylum within one year of entering the United States, or those found to pose a threat to United States.
Reference: American Immigration Council
