Defensive asylum is a process through which an individual can apply for asylum as a defense against removal from the United States. It is called defensive because the individual is defending themselves against deportation by seeking protection in the form of asylum. This process involves appearing before an immigration judge in removal proceedings, presenting evidence and arguments to support their claim for asylum, and being granted asylum if the judge finds their claim to be credible and meets the requirements for asylum.
A person who is in removal proceedings may apply for asylum defensively by filing the application with an immigration judge at the Executive Office for Immigration Review (EOIR) in the Department of Justice.
In other words, asylum is applied for as a defense against removal from the U.S. Unlike the criminal court system, EOIR does not provide appointed counsel for individuals in immigration court, even if they are unable to retain an attorney on their own.
Asylum seekers who arrive at a U.S. port of entry or enter the United States without inspection generally must apply through the defensive asylum process. Both application processes require the asylum seeker to be physically present in the United States.
