Defensive Asylum Hearing Process in Immigration Court

Generally, individuals seek asylum in the United States to escape specific types of persecution should he or she be forced to return to their homeland. The asylum hearing process varies on whether the foreign national is seeking asylum through an affirmative process or a defensive process. Unlike in an affirmative asylum application, the removal proceedings with the Executive Office for Immigration Review have begun in a defensive asylum application.


During the defensive asylum hearing, the Immigration Judge (IJ) will hear arguments from both the individual (and counsel, if represented) and the attorney from Immigration and Customs Enforcement. Because ICE attorneys attempt to disprove the foreign national’s eligibility for asylum, it is important for the foreign national, or his/her attorney, to make a convincing case as to why removal is not appropriate.


To be successful, the individual in a defensive asylum hearing must present corroborating evidence. This includes material witnesses such as family members and friends, as well as written documentation that speak to the individual’s credibility. Once the foreign national testifies, he or she will be subject to a direct examination, followed by a cross examination by the ICE attorney and the IJ.


The decision of the IJ will generally be issued on the same day of the defensive asylum hearing. Assuming the IJ finds the foreign national eligible for asylum, the order will be granted. If the individual is found ineligible, the IJ will decide if there are any other forms of relief from removal. In the event the individual is ineligible of any other forms of relief, the IJ will order the individual be removed from the United States. After the IJ renders the decision, the individual in a defensive asylum hearing will be asked whether they would like to reserve or waive their right to appeal.


As explained above, the case becomes procedurally more formal and the stakes for the person seeking asylum increase substantially once removal proceedings have started. Therefore, it is critical to obtain a well-seasoned immigration attorney. Attorneys at Theus Law Offices have been successful at helping individuals in a defensive asylum process obtain asylum in the United States.