In defensive asylum proceedings, the applicant makes an asylum request in response to being removed from the United States. These cases are heard by Immigration Judges with the Executive Office for Immigration Review. As discussed in our previous article, one circumstance in which these cases arise is when an illegal alien's application for affirmative asylum was denied. These cases also arise when foreign nationals who are undocumented or in violation of their status are apprehended. Likewise, if a foreign national is caught trying to enter the U.S. without proper documentation, their case will be sent to an Immigration Judge if they are found to have a credible fear of persecution or torture.
A defensive asylum proceeding is a courtroom-like proceeding in which the Immigration Judge hears the applicant's claim and also hears any concerns raised by the government. The judge then determines if the applicant is eligible for asylum status. The eligibility requirements are the same as those in the case of affirmative asylum.
If the Immigration Judge determines that the applicant is eligible for asylum, then the applicant may remain in the U.S. indefinitely and later apply for lawful permanent residence. On the other hand, if the judge determines that the applicant is not eligible for asylum (or any other form of relief from removal), the individual will be ordered removed from the United States.
In our next article we will discuss refugee status.