Asylum in the United States: Affirmative vs Defensive Process

Asylum is one of the most fundamental protections in United States immigration law, rooted in international obligations under the 1951 Refugee Convention and its 1967 Protocol. Under the Immigration and Nationality Act (INA) Section 208, individuals who are physically present in the United States may apply for asylum if they have suffered persecution or have a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. At J. Lee & Associates Law Group in Norcross, Georgia, we represent asylum seekers in both the affirmative and defensive processes, providing experienced legal counsel through every stage of these life-changing proceedings.

Understanding the Two Paths to Asylum

There are two distinct processes for obtaining asylum in the United States: the affirmative process and the defensive process. The path an applicant follows depends on their circumstances, particularly whether they are in removal (deportation) proceedings before an Immigration Judge.

Affirmative Asylum

Who Files Affirmatively?

Affirmative asylum is for individuals who are physically present in the United States and are not currently in removal proceedings. This includes people who entered with a valid visa (tourist, student, work visa) and now fear returning to their home country, as well as individuals who entered without inspection but have not yet been placed in removal proceedings.

The One-Year Filing Deadline

Under INA Section 208(a)(2)(B), asylum applicants must generally file their application within one year of their last arrival in the United States. This deadline is strictly enforced. However, there are two exceptions: (1) changed circumstances that materially affect the applicant's eligibility for asylum, such as a coup in the home country or new persecution of the applicant's group, and (2) extraordinary circumstances that prevented timely filing, such as serious illness, legal disability, or ineffective assistance of counsel. Meeting this deadline is critical, and applicants should seek legal advice immediately upon arrival.

Filing the Application (Form I-589)

The affirmative asylum application is filed on Form I-589, Application for Asylum and for Withholding of Removal, submitted to the USCIS Service Center. As of the 2024 fee rule, there is now a $50 filing fee for affirmative asylum applications, a significant change from the previously free filing. Fee waivers are available for those who cannot pay.

The Asylum Interview

After filing, the applicant is scheduled for an interview with a USCIS Asylum Officer at one of the eight Asylum Offices across the country. The nearest offices for Georgia residents are typically the Miami or Houston Asylum Offices, though interviews may also be conducted at other locations. During the interview, the Asylum Officer will question the applicant about their claim, assess credibility, and evaluate whether the applicant meets the legal standard for asylum. Applicants may bring an attorney and an interpreter to the interview.

Processing Times for Affirmative Asylum (2026)

As of 2026, affirmative asylum processing times vary significantly. USCIS implemented a "last in, first out" (LIFO) scheduling policy in 2018 for certain cases, meaning recently filed cases may be interviewed more quickly than older cases. However, the massive backlog of asylum cases means many applicants wait years for their interview. The current affirmative asylum backlog exceeds 800,000 cases nationwide. Wait times of 3 to 5 years for an interview are common, though some cases move faster depending on the filing date and Asylum Office jurisdiction.

Outcomes of the Affirmative Process

After the interview, there are three possible outcomes: (1) Grant: the Asylum Officer grants asylum, and the applicant receives asylum status; (2) Referral: if the applicant does not have lawful immigration status and is not granted asylum, the case is referred to Immigration Court for removal proceedings, where the applicant can renew the asylum claim before an Immigration Judge (this becomes a defensive asylum case); (3) Notice of Intent to Deny (NOID): for applicants who have lawful status, the Asylum Officer may issue a NOID, allowing the applicant to respond before a final denial is issued.

Defensive Asylum

Who Files Defensively?

Defensive asylum is for individuals who are already in removal proceedings before an Immigration Judge in the Executive Office for Immigration Review (EOIR). This includes people who were referred from the affirmative process, individuals who were apprehended by immigration authorities, and those who received a Notice to Appear (NTA) in Immigration Court.

Filing in Immigration Court

In defensive proceedings, the asylum application (Form I-589) is filed directly with the Immigration Court. There is no filing fee for defensive asylum applications. The applicant must present their case before the Immigration Judge, who will conduct a full hearing, including testimony from the applicant and any witnesses, and review all documentary evidence.

The Merits Hearing

The merits hearing is the central event in a defensive asylum case. The applicant testifies under oath about their persecution claim, and the government attorney (ICE Trial Attorney) has the opportunity to cross-examine. The applicant's attorney presents corroborating evidence, including country condition reports, expert testimony, medical and psychological evaluations, personal declarations from witnesses, and documentary evidence of persecution. The Immigration Judge evaluates credibility, determines whether the applicant meets the legal standard, and issues a decision.

Immigration Court Backlogs (2026)

The Immigration Court backlog is one of the most severe in the system's history. As of early 2026, there are over 3.5 million pending cases in Immigration Courts nationwide. In the Atlanta Immigration Court, which serves the Georgia area, wait times for merits hearings can range from 3 to 6 years. This backlog means that respondents in defensive proceedings may wait years before their case is heard, during which time they may or may not have work authorization depending on their specific circumstances.

Key Legal Standards for Both Processes

Persecution

Asylum law requires a showing of past persecution or a well-founded fear of future persecution. Persecution means serious harm or suffering inflicted by the government or by groups the government cannot or will not control. Examples include physical violence, torture, imprisonment, death threats, severe discrimination, and forced labor. Economic harm alone is generally insufficient unless it is so severe as to threaten life or freedom.

Protected Grounds

The persecution must be on account of one of five protected grounds under INA Section 101(a)(42): race, religion, nationality, membership in a particular social group, or political opinion. The "particular social group" category has been the subject of extensive litigation and evolving case law, particularly regarding claims based on gang violence, domestic violence, and gender-based persecution.

Bars to Asylum

Certain individuals are barred from receiving asylum under INA Section 208(b)(2), including those who have persecuted others, been convicted of a particularly serious crime, committed a serious nonpolitical crime outside the United States, pose a danger to national security, were firmly resettled in another country, or have previously been denied asylum (unless circumstances have changed).

Asylum in the 2025-2026 Policy Environment

The asylum landscape has shifted significantly in 2025-2026. The introduction of the $50 affirmative asylum fee, the Laken Riley Act's impact on enforcement, and various executive actions have created new complexities. The new asylum fee, while modest, requires careful attention to filing procedures. Additionally, the current administration's enforcement priorities may affect how asylum cases are prioritized and adjudicated.

For applicants in Georgia, the Atlanta Immigration Court's local rules and the specific tendencies of individual judges are important factors in case strategy. Our attorneys at J. Lee & Associates are experienced practitioners in the Atlanta Immigration Court and understand the local dynamics that can affect case outcomes.

How J. Lee & Associates Can Help

Asylum cases are among the most complex and consequential in immigration law. The stakes are enormous, as a denial can result in deportation to a country where the applicant faces persecution. At J. Lee & Associates Law Group, 1250 Tech Dr, Suite 240, Norcross, GA 30093, we provide comprehensive representation for asylum seekers in both the affirmative and defensive processes. Our services include case evaluation and eligibility assessment, preparation of the I-589 application and all supporting documentation, representation at USCIS asylum interviews, full representation in Immigration Court proceedings, appeals to the Board of Immigration Appeals (BIA) and federal courts, and assistance with work authorization applications.

If you or someone you know needs asylum protection, do not wait. The one-year filing deadline is critical, and early legal advice can make the difference in your case. Contact our office for a confidential consultation.

This article is for informational purposes only and does not constitute legal advice. Asylum law is complex and constantly evolving; consult with a qualified immigration attorney for advice specific to your situation. Information current as of May 2026.