Anatomy of a Defensive Asylum Application

The first article in this series explained that a person seeking asylum in the United States is within the definition of a refugee.  The second explained the two different ways to request asylum.  This article will go in-depth into the second way to apply for asylum: defensive asylum applications.  For more information about affirmative asylum applications, click here.

Why Would Anyone File a Defensive Application?

A person filing a defensive asylum application has been placed into removal (deportation) proceedings.  A person can be in removal proceedings either because he or she sought asylum at the border to the United States or because he or she was caught within the borders of the U.S. without a visa.  Because of the worsening situations several Central and South American countries the former situation is becoming the most common.  People escaping the violence in their homeland simply appear at a border crossing station or wander in the desert until Customs and Border Protection picks them up.  This being the more common situation, it will be the model for this article.

Let’s follow Paula and her 6-yr old daughter Jazmin (two fictional characters) as they request asylum at the border crossing in Brownsville, TX.

Credible Fear Interview

First, Paula and Jazmin will be asked to wait for several hours while the customs official reviews their documents.  They are next place in what the immigrants call the “perrera” or “dog-pound” because of its appearance.  Here they will await transportation to a detention center.  Most people are only in the perrera for one or two days.

After being transported to a detention center, both Paula and Jazmin are given inmate clothing to wear, an identifying wristband, and a room assignment.  They are given some orientation as to the jail rules, schedule, and expected behavior.  Paula says yes.  Paula is handed several documents (all in English) that explain her rights and obligations with the immigration court.  She has a meeting with an ICE officer and is given the option of a very high bond or to see a judge, stay longer in the jail, and have the possibility of a lower bond.  Paula has an uncle in the US, but doesn’t know if he’d be able to pay that much to get her and Jazmin out of jail, so she says that they will wait and try to get a lower bond.

Since Paula and Jazmin have said that they would like asylum in the United States, their jailers (Immigration and Customs Enforcement) will send their request to an Asylum Office which is managed by U.S. Citizenship and Immigration Services.  Both ICE and USCIS are part of the Department of Homeland Security.  The Asylum Office will schedule an interview, called a Credible Fear Interview, to determine whether there is a reasonable possibility that Paula and Jazmin could win an asylum case in front of a judge.  Depending on where Paula and Jazmin are detained and how many people across the country are requesting a similar interview, it could be weeks before their interview.  Those weeks of waiting make the option of a very high bond more and more appealing.

We’ll assume that Paula and Jazmin have been sent to the Karnes Residential Center where there are volunteer immigration attorneys.  Paula and Jazmin are asked if they’d like to speak with one of the volunteer attorneys.  Volunteer attorneys help Paula to organize her story according to American cultural norms (chronologically) and understand the parts that are and are not relevant under the law (how scary it will be for her to go back).  If available, a volunteer attorney can also be present with her at her Credible Fear Interview to help her remember what they’ve discussed.

If Paula passes the Credible Fear Interview, she will have the opportunity of requesting a lower bond with an immigration judge.  Once the bond amount is set and paid, Paula and Jazmin will be released.  Paula will be fitted with an ankle monitor and given very strict requirements for telephone, in person, and home visit reporting to an ICE officer.  Paula will also be given papers (all in English) informing her of her next court date and the consequences of not attending, informing her of how to change her address with the immigration court, and  Sometimes the release is very sudden and literal, resulting in a person being essentially stranded in front of the jail.  There are now charitable organizations whose sole purpose is to transport people to temporary shelters while they find somewhere in the U.S. to settle while their case is processed.

If Paula doesn’t pass the Credible Fear Interview, there is a short reconsideration procedure.  However, if the reconsideration requests are ultimately denied, then she will be deported.

In the Immigration Court

Depending on location, asylum cases can last from months to several years before the Immigration Court.  There will be some preliminary hearings where initial issues are disposed of and the asylum-seeker will submit her application to the Immigration Judge.  Then a trial date, called an Individual Hearing will be set.  The Immigration Court in Salt Lake City is on the shorter end of the spectrum with Individual Hearings being set in late 2017 or early 2018.

It is possible to request an expedited hearing.  In that case, the trial will occur 45-60 days after the preliminary hearing.

Every person in the Immigration Court has a right to an attorney at no cost to the government.  Any representation they obtain they must pay for themselves.  Some organizations provide pro bono representation, but the majority of people borrow money from family members or loan sharks to pay for an attorney.  The Salt Lake Immigration Court currently only has one pro bono representation provider listed.

Work Authorization

Asylum-seekers are only eligible for work authorization if their application has been pending for 180 days.  Any delay on the part of the applicant will stop the time from accruing.  Most asylum-seekers never qualify for work authorization during the pendency of their case.


For more detailed information on defensive asylum applications, such as local processing times, specific applications of the law, and other considerations, consult an experienced immigration attorney.

Kate Barber
07.14.2016