Defensive Asylum, Withholding and CAT in Immigration Court

General Qualifications for Defensive Asylum

Defensive asylum is a request for asylum made as a defense against removal in Immigration Court. People usually enter this process when USCIS refers an affirmative case to the court, or when they are placed in removal proceedings, for example after a positive credible fear finding.

The Immigration Judge hears the case in an adversarial, courtroom-style proceeding with an ICE attorney representing the government. Form I-589 also serves as the application for withholding of removal and CAT protection. If the judge finds the applicant ineligible for asylum, the judge considers other relief, and either party may appeal to the BIA.

Clients This Case Type Helps

• People in removal proceedings who fear persecution in their home country
• Asylum applicants referred to court by USCIS after an affirmative interview
• People placed in proceedings after a positive credible fear finding
• Applicants past the one-year deadline who may still seek withholding or CAT
• Families where a spouse and children may be included as derivatives

General Qualifications

• Has suffered persecution or fears persecution due to race, religion, nationality, membership in a particular social group or political opinion.
• Files within 1 year of the last arrival, unless changed or extraordinary circumstances apply and the filing came within a reasonable time.
• No previous asylum application denied by an Immigration Judge or the Board of Immigration Appeals.
• Cannot be removed to a safe third country under a 2-party or multi-party agreement.
• Not barred for persecuting others, a particularly serious crime, a serious nonpolitical crime abroad or danger to U.S. security.
• Not firmly resettled in another country before arriving, and not barred by terrorism-related inadmissibility grounds.
• Certain southwest border entrants from May 12, 2023 to May 11, 2025 are presumed ineligible under the CLP rule unless an exception applies.

Consultation Screening Questions

1. When did you last arrive in the United States, and how did you enter?
2. Who harmed or threatened you, why do you think they targeted you, and did you report it?
3. Have you ever applied for asylum before, in the United States or another country?
4. Did you live in or pass through other countries, and did you have status or an offer of status there?
5. Have you ever been arrested, charged or convicted, or harmed others, in any country?
6. Is it safe to call, text or email you, and is anyone at home who should not see our messages?
7. Did you have a credible fear interview, and do you have the record from it?
8. Do you have family members who should be included, and where are they now?

General information based on USCIS and other government guidance. Eligibility depends on each client’s facts; this is not legal advice.