I. Introduction
When an asylum seeker's case is referred from USCIS or initiated during removal proceedings, the matter transitions into what is known as defensive asylum — an application for protection raised as a defense against deportation before an Immigration Judge (IJ) of the Executive Office for Immigration Review (EOIR).
Unlike the affirmative process before USCIS, which is non-adversarial and interview-based, the defensive process is a formal courtroom proceeding. It involves a government attorney representing the Department of Homeland Security (DHS), extensive evidentiary rules, and a judge who must weigh both sides before issuing a decision.
This article provides a comprehensive analysis of the defensive asylum process, outlining its legal framework, procedural stages, evidentiary requirements, and strategic considerations essential for effective representation.
II. Legal Framework and Jurisdiction
The Immigration and Nationality Act (INA) §208 authorizes Immigration Judges to grant asylum to individuals who qualify as refugees under INA §101(a)(42) and the 1951 Refugee Convention.
Once a case is referred to EOIR, jurisdiction transfers from USCIS to the Immigration Court. The judge reviews the claim de novo—meaning entirely anew—and is not bound by the prior USCIS findings.
Applicants in removal proceedings may simultaneously seek other forms of protection, including:
The government's trial attorney (ICE Office of the Principal Legal Advisor) opposes the claim, making the proceeding adversarial in nature.
- Withholding of Removal under INA §241(b)(3), and
- Protection under the Convention Against Torture (CAT) under 8 C.F.R. §§1208.16–1208.18.
III. The Hearing Process
The defensive asylum process consists of two principal stages: the Master Calendar Hearing (MCH) and the Individual (Merits) Hearing.
Master Calendar Hearing (MCH)
This is the initial procedural hearing where the applicant confirms their name, address, and removability. The judge schedules deadlines for submitting evidence, applications, and witness lists. Legal representation is essential at this stage to ensure the record is clear and deadlines are met.
Individual Hearing (Merits Hearing)
This is the substantive trial. The applicant (respondent) presents testimony, witnesses, and documentary evidence to support the asylum claim. The government attorney cross-examines the applicant, and the Immigration Judge makes findings of fact and conclusions of law. Hearings often last several hours and may be scheduled months in advance due to backlogs.
IV. Burden of Proof and Standard
The asylum applicant bears the burden of proof to demonstrate eligibility under INA §208(b) — that they suffered past persecution or have a well-founded fear of future persecution on account of one of the five protected grounds: race, religion, nationality, political opinion, or membership in a particular social group.
The applicant must also prove that the persecution is connected to one of these protected grounds ("nexus"). This causal relationship often becomes the key legal issue at trial.
Under INS v. Cardoza-Fonseca, 480 U.S. 421 (1987), the "well-founded fear" standard requires a reasonable possibility — as little as a 10% chance — of persecution if returned. Thus, even a relatively low probability, when supported by credible evidence, can justify asylum.
V. Evidence and Credibility in Court
Credibility is often the most critical element in defensive asylum proceedings. Under the REAL ID Act of 2005, judges must evaluate credibility based on the totality of the circumstances, considering:
Common credibility issues include:
- The applicant's demeanor and consistency under oath;
- Internal consistency within the testimony;
- Consistency between oral testimony and written statements; and
- Alignment with objective country condition evidence.
Variations between the initial I-589 declaration and courtroom testimony; Misunderstandings caused by translation; Omissions of traumatic events due to fear or cultural barriers.
Attorneys must prepare applicants through mock hearings and review every part of the record to ensure consistency. If discrepancies exist, they must be addressed proactively through clarification and corroborating documentation.
Corroboration—though not always mandatory—is powerful. Documentary evidence such as police reports, medical certificates, political membership documents, or affidavits from witnesses can help confirm the applicant's story. Additionally, country condition reports from sources like the U.S. Department of State, Human Rights Watch, or Amnesty International provide objective context for the applicant's fear.
VI. Legal Defenses and Bars to Asylum
The Immigration Judge must also consider statutory bars to asylum, including:
Where barred from asylum, applicants may still qualify for withholding of removal (a higher standard but mandatory if met) or protection under CAT, which prevents return to a country where they are more likely than not to be tortured.
- Firm Resettlement: If the applicant received permanent status or protection in a third country.
- Persecution of Others: If the applicant assisted in the persecution of others.
- Serious Nonpolitical Crimes or Terrorist Activity: Criminal conduct or material support to terrorist groups can disqualify an applicant.
- One-Year Filing Bar: Unless excused by changed or extraordinary circumstances.
VII. The Role of Counsel and Strategy
Legal representation before EOIR is not provided by the government, making private counsel indispensable. An experienced attorney ensures procedural compliance, introduces expert evidence, and articulates the legal theory of the case effectively.
Key strategic considerations include:
Narrative Construction
The attorney must present a consistent, emotionally authentic, and legally structured narrative connecting the applicant's experiences to the protected ground.
Expert Witnesses
Medical, psychological, or country condition experts can provide critical independent validation of trauma and risk.
Cross-Examination Preparation
Applicants should be trained to answer directly, avoid speculation, and remain calm under questioning.
Addressing Internal Relocation or Credibility Challenges
The government may argue that the applicant can safely relocate within their home country or that their account lacks credibility. Counsel must counter with evidence demonstrating that the threat is national in scope or the applicant's profile is known nationwide.
Supplemental Motions
In complex cases, attorneys may submit legal briefs citing precedent decisions such as Matter of Acosta, Matter of S-P-, or circuit court rulings relevant to nexus and protected grounds.
VIII. Decision and Appeals
After the hearing, the Immigration Judge may issue an oral decision immediately or reserve judgment for written publication.
Possible outcomes include:
If asylum is denied, the respondent may file an appeal with the Board of Immigration Appeals (BIA) within 30 days. The BIA reviews legal and factual findings and may either affirm, remand, or overturn the decision. Further judicial review may be sought before the U.S. Court of Appeals on questions of law.
- Grant of Asylum: The applicant and qualifying family members gain protection and may apply for permanent residence after one year.
- Denial: The applicant may be ordered removed but retains the right to appeal.
- Grant of Withholding or CAT Protection: Provides safety from return but without the broader benefits of asylum.
IX. Common Grounds for Denial
Some of the most frequent reasons Immigration Judges deny asylum include:
These challenges underscore the importance of early legal representation and strong documentary preparation. Well-prepared legal arguments and persuasive testimony can often overcome these barriers.
- Inconsistent or vague testimony;
- Lack of corroborating evidence;
- Determination that harm was not "on account of" a protected ground;
- Findings of safe internal relocation; or
- Application of the one-year filing bar.
X. Conclusion
Defensive asylum proceedings before the Immigration Court are complex, high-stakes, and adversarial. They require both legal precision and deep human understanding. The applicant must not only prove eligibility under statutory definitions but also convince the court of their sincerity and vulnerability through consistent, credible evidence.
While the process can be lengthy and emotionally taxing, the Immigration Court remains a vital safeguard for human rights under U.S. and international law. Success in these proceedings depends on comprehensive preparation, strong evidentiary support, and experienced advocacy.
At Eren Legal PLLC, our attorneys represent asylum seekers nationwide before the Immigration Court and the Board of Immigration Appeals. We combine rigorous legal strategy with compassionate advocacy to ensure every client's case is presented with clarity, integrity, and strength.
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If you or a loved one is facing removal and seeking asylum, contact Eren Legal PLLC today for a confidential consultation.