Applications for “defensive asylum” are filed in Immigration Court as a deportation defense. This means that if an immigrant has been placed in deportation proceedings and an immigration judge will determine whether they should be deported or should be granted some kind of relief that allows them to remain in the United States.
The requirements for defensive asylum are the same as for an affirmative asylum application. It is presented directly at the asylum office and the applicant must show that he or she suffered persecution or fears future persecution for one of the five protected grounds: race, religion, nationality, political opinion or belonging to a certain social group.
One of the main difficulties with asylum defense applications is the one-year deadline. There are certain statutory rules (mandatory rules) for granting asylum. Applicants must apply within the first year of their arrival in the United States, otherwise the application may be rejected, even if the fear claim meets one or more of the above-mentioned requirements.
Unfortunately, a lack of knowledge of the process, fear of immigration authorities, possible deportation, the language barrier, and the financial side often stop many immigrants from seeking asylum.
Large numbers of immigrants do not apply for affirmative asylum for one or more of these reasons. Many are not identified by immigration authorities and are placed under removal proceedings after they have been in the US for more than a year, often even many years later.
If this occurs, it is a great challenge to show that the applicant qualifies for an exception to the one-year filing deadline due to a substantial change in circumstances affecting their eligibility as asylum seekers or extraordinary circumstances.
We successfully worked on this exception recently for one of our clients recently. Mrs. RA. Those were long years for Mrs. RA. After enduring abuse, fear, and uncertainty, he was given political asylum by an Immigration Judge.
Mrs. RA suffered abuse during her childhood in Honduras, followed by years of brutal domestic violence at the hands of her former partner and father of her child. Fearing further abuse and death, she fled to the US At the time of her admission she was a minor, pregnant, poor and scared.
Upon entering the US, she was detained by immigration authorities and placed in deportation proceedings. However, due to her age and circumstances, she did not appear for the scheduled hearing and in her absence she was ordered deported.
Years later, she was detained by immigration authorities again. Our attorneys filed a motion to reopen his removal proceedings, which was granted by an immigration judge.
Once the deportation proceedings were opened, Mrs. RA applied for asylum as a relief to her removal. Her asylum claim was based on the domestic violence she had suffered and the fear of future persecution at the hands of her former partner if she were to return to Honduras.
However, this asylum application was filed six years after his initial entry into the US – well beyond the one-year deadline.
Shortly after the presentation, another threat emerged to her and her family. One of the most notorious gangs in Honduras threatened his brother and in their attempt to reach him, they killed our client’s mother, one of her brother’s friends, and threatened various family members.
We have argued that the unfortunate death of his mother and the subsequent threats qualify as “a material change in the circumstances that affect his eligibility for asylum”, since it occurred one year after the presentation of his application, and that these are constituted in extraordinary circumstances. The government agreed and the immigration judge granted asylum to our client.
After years of uncertainty, now Mrs. RA is sure that she will not be deported to Honduras, where her life would be in danger. She can remain in the US in asylee status and will be able to apply for her permanent residence and citizenship in the future.
Now you can bring up your children who are American citizens without fear of being separated and you can even bring your oldest child to the US after they have been separated for years and out of fear for their safety.
We are very pleased to be able to help our client Mrs. RA in this process and we look forward to continuing to help her achieve her American dream.
Fayad Law, P.C.
8315 Lee Highway Suite 620,
Fairfax, VA 22031