Affirmative vs. Defensive

“Affirmative” Asylum In the affirmative asylum process, individuals who are physically present in the United States, regardless of how they got here and regardless of their current immigration status, may apply for asylum. They do so by submitting an application to the USCIS. Asylum-seekers must apply for asylum within one year from the date of last arrival in the United States, unless they can show changed circumstances that materially affect their eligibility or extraordinary circumstances relating to the delay in filing, and that they filed within a reasonable amount of time given those circumstances. They file an asylum application by sending it to a USCIS Service Center, and are interviewed by Asylum Officers. Affirmative asylum applicants are free to live in the U.S. pending the completion of their asylum processing with the USCIS and, if found ineligible by the USCIS, then with an Immigration Judge. Asylum applicants referred to an Immigration Judge for such processing are usually not detained.

U.S. “Defensive” Asylum Processing with EOIR Immigration Judges hear asylum applications only in the context of “defensive” asylum proceedings. Applicants request asylum as a defense against removal from the United States. Immigration Judges hear such cases in adversarial proceedings. If the applicant is not found eligible for asylum, the IJ determines whether the applicant is eligible for any other forms of relief from removal and, if not, will order the individual removed from the United States. Aliens generally are placed into defensive asylum processing in one of two ways: 1) they are referred to an IJ by Asylum Officers who did not grant asylum to them, or 2) they are placed in removal proceedings because they: a) are undocumented or in violation of their status when apprehended in the U.S. or b) were caught trying to enter the U.S. without proper documentation (usually at a port-of-entry) and were found to have a credible fear of persecution or torture.

Asylum-Seekers and Expedited Removal

Most undocumented immigrants stopped by immigration officers at a U.S. port-of-entry (POE) may be subject to expedited removal. This means that, for persons other than genuine asylum seekers, refusal of admission and/or removal from the United States can be effected quickly. Any person subject to expedited removal who raises a claim for asylum – or expresses fear of removal – will be given the opportunity to explain his or her fears to an Asylum Officer.

If the individual expresses a fear of return, the individual is detained and given an interview by an Asylum Officer. The role of the Asylum Officer is as an Asylum Pre-Screening Officer (APSO) who interviews the person to determine if he or she has a credible fear of persecution or torture. This is a standard that is broader — and the burden of proof easier to meet — than the well-founded fear of persecution standard needed to obtain asylum. Those found to have a “credible fear” are referred to an Immigration Judge to hear their asylum claims. Most individuals who are found to have a credible fear are released. However, some are not released, and instead are detained while their asylum claims are pending with the Immigration Judge.

Do you think you have an asylum matter? Contact our firm to setup a free consultation.

Law Firm Offering Free Initial Consultations in Edison NJ


The Law Office of Omar K Qadeer, PC, is a full-service law firm in central Edison, New Jersey, serving the needs of individuals, families and businesses alike.  The law firm focuses on the following practice areas: Divorce, Family Law, Business and Family Immigration, Business Law, Municipal Law and Criminal Law. If you or someone you know has a legal question or issue, you may contact the Law Office Omar K. Qadeer, Esq.

The law firm offers free initial consultations. You may call us to schedule an appointment at (732) 947-4795, email us at , or simply use the contact form on this web page.


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 Our law firm is dedicated to professionalism, efficiency and establishing genuine relationships with our clients.  Figuring out how the law applies to your case can be a confusing and stressful experience.  That is why we have designed our practice to offer our clients comprehensive representation that will treat your case with care and help guide you each step along the way.Our team is ready to help and serve you.   Call today for a free consultation  or use the contact form!  We look forward to meeting you!

* Please note that any discussion during the course of a free consultation or email is not considered legal advice or to be assumed as an attorney’s representing any individual or entity.  Unless the law office is retained, any discussions during consultations are to be considered general information and not advice of retained counsel.

Our Edison location is also conveniently located on the US Route 1 North.  If you are familiar with Edison, it is in the vicinity of the Sam’s Club and the Mercedes dealership.  Our attorneys and staff are constantly traveling to court, so please feel free to call us to schedule an appointment.  


The Law Office of Omar K Qadeer PC,  is a affordable Full Service Law Firm able to offer you assistance in several areas of practice here in New Jersey, including:

1.  DIVORCE/FAMILY           2.  CRIMINAL DEFENSE       

3.  IMMIGRATION              4.  CIVIL MATTERS               

5.  SERIOUS INJURIES         6.  MUNICIPAL / TRAFFIC / DUI/DWI                


9  LEGAL COMPLIANCE          10.  LANDLORD/TENANT