Fighting for Your Case in Removal Proceedings
Defensive asylum is for individuals fighting deportation in Immigration Court (the Executive Office for Immigration Review, or EOIR). You are filing “defensively” to stop the U.S. government from removing you. This happens if you were referred by an Asylum Officer or if you were placed in proceedings after an arrest or by CBP at the border.
Who Qualifies Defensive Asylum?
- Must Be In Proceedings: You must have an active case before an Immigration Judge (IJ).
- Form I-589: You must file Form I-589 with the court to apply for asylum, Withholding of Removal, and/or protection under the Convention Against Torture (CAT).
- The Standard: Like affirmative asylum, you must prove a “well-founded fear” of persecution on one of the five protected grounds.
Special Protection for Minors (TVPRA in Court)
Even if a UAC (Unaccompanied Alien Child) is in court, the TVPRA protections still apply.
- Child-Sensitive Procedures: The Immigration Judge must follow child-friendly procedures.
- DHS Discretion: The DHS trial attorney (OPLA) is encouraged to exercise favorable discretion, such as agreeing to terminate the case to let USCIS decide it.
- No Deadline: The one-year filing deadline for asylum does not apply to UACs.
Step-by-Step Process & Typical Timeline
- Master Calendar Hearing (MCH): Your first short hearing. You appear before the IJ, admit or deny the government’s charges, and state the relief you are seeking (e.g., “asylum”). The IJ will set your filing deadlines.
- File I-589: You file your application directly with the Immigration Court.
- Individual Merits Hearing (IMH): This is your trial. You will testify under oath, present your evidence and witnesses, and be cross-examined by the DHS trial attorney.
- Decision: The IJ will issue an oral or written decision to: (1) Grant asylum, (2) Grant a lesser protection (like Withholding of Removal), or (3) Deny all relief and order you removed.
Real-world timing: This is a long fight. Given the current 1.9 million-case backlog, you can expect to wait 2–4 years for an Individual Merits Hearing in California’s busy courts.
2024-25 Policy Updates
- EOIR e-Filing Portal: As of April 2025, filing is now mandatory through the EOIR e-filing portal for all represented cases. This has reduced filing errors but created new technical challenges.
- New BIA Precedent (Spring 2025): A recent Board of Immigration Appeals (BIA) decision has made it more difficult to win “particular social group” claims based on family membership in certain gang-violence cases.
Evidence Checklist
- Form I-589 (filed with the court)
- Your detailed Personal Declaration
- Updated Country Conditions reports (must be recent for trial)
- Expert Witness (if applicable, e.g., a country expert or psychologist)
- Corroborating Evidence (letters from home, news, medical records)
Risks & Practical Tips
- Adversarial: This is a court, not an interview. The DHS attorney’s job is to test your credibility and, in many cases, argue for your removal.
- Credibility is Key: Any small inconsistency can be used to damage your credibility and sink your case. You must be consistent.
- Missed Hearing = Deportation: If you miss a hearing, the judge will almost certainly order you removed in absentia.
Next Steps
Your life is on the line. A defensive asylum case is a trial, and you need a trial lawyer. We build a “trial-ready” case from day one. Contact us immediately for a full case evaluation.
Last updated October 2025. Regulations change frequently—contact us for a personalized assessment.
This information is for educational purposes only and does not constitute legal advice.