Removal proceedings create anxiety and uncertainty for people who have or want to make the United States their home. It is especially scary for people who have a real fear of returning to their home country. For those of you with a well-founded fear of persecution, you may have a defense to the removal proceedings.

 

At Palacio Law, we are ready and able to handle both affirmative and defensive asylum cases. Edwin Palacio possesses a deep understanding of the laws and regulations governing these types of cases and can assist you in building a solid case designed to meet the legal prerequisites to get your asylum petition approved. 

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Understanding the Asylum Process

 

The asylum process allows individuals who have fled their country of origin due to persecution, or fear persecution, to seek protection within the United States. An asylee is considered to be a “refugee” in the United States or at a U.S. port of entry when seeking protection. 

 

Section 101(a)(42) of the Immigration and Nationality Act defines a refugee as a person with a well-founded fear of persecution in their home country based on their: 

 

• Race

• Religion

• Nationality

• Membership in a particular social group

• Political opinion

 

Eligibility to File for Defensive Asylum 

 

Generally, defensive asylum is available if your case falls into one of these three categories: 

 

1. You applied for affirmative asylum and the U.S. Citizenship and Immigration Services (USCIS) did not grant asylum. When this happens, the USCIS will refer your case to an immigration court for determination. 

2. You are embroiled in removal proceedings after being arrested by the U.S. Immigration and Customs Enforcement (ICE) for living in the United States without the necessary documentation. 

3. You are embroiled in removal proceedings after requesting asylum at a port of entry or crossing the border without the necessary legal documents. In this situation, you will likely encounter “expedited” removal proceedings. Before you can go to an immigration court, you must have a “credible fear interview” with an asylum officer to determine whether you have a credible fear of persecution. If the officer believes you qualify for asylum, they will refer your request to an immigration court. If the officer denies your asylum application, you will be deported unless you request a decision review. 

 

Overview of the Defensive Asylum Process

 

It is important to note that each asylum case is unique and different, which means the process will likely be somewhat different for each case. Nevertheless, there are certain aspects of the defensive asylum process that most petitioners encounter and will need to be prepare for, including: 

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Attending an Initial Hearing

 

The first step in the defensive asylum process is attending an initial hearing. If you have a DC immigration lawyer, the judge will list your matter for merits, or final hearing. If you do not have a DC immigration attorney, the court will typically provide you with a list of pro bono (free) lawyers and list your matter for another interim court date. 

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Completing and Filing an Asylum Petition

 

If you were apprehended at a port of entry, or by ICE while living illegally in the United States, you must file a Form I-589, Application for Asylum and for Withholding of Removal. You do not need to file this form if you have been referred to a court by USCIS following an affirmative asylum application. 

 

You will need to file the Form I-589 with the court that hears your asylum application. You must file it within one year of your arrival in the United States. There are only two exceptions to this filing deadline and require showing (i) that your circumstances changed and impacted your eligibility for asylum or (ii) extraordinary circumstances caused the filing delay.

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Compiling and Filing Supporting Documents

 

Before your final hearing, you can submit supporting evidence to the court and update your Form I-589 if any details have changed. Evidence that may support your asylum claim includes:

 

• Your personal statement

• Medical records

• Expert reports

• Human rights reports

• Evidence of the persecution you suffered in your home country. 

 

For example, you can provide photos, witness statements, or police reports. The judge will give you a deadline to file these documents, typically fifteen days prior to your final hearing. 

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Attend a Merits Hearing 

 

At the merits hearing, the judge will hear the evidence your DC immigration attorney presents and will ultimately decide your case. You will likely need to testify and explain why you fled your country of origin and fear returning. You will also need to be ready to answer questions by an attorney representing the federal government. In addition, the judge may ask questions throughout the merits hearing. 

 

In addition to direct testimony, you have the option to call witnesses to support your case, including friends and/or family who can speak about your experiences or a country expert who can explain the risks of returning to your country.