If a person requests asylum as a defense against removal from the U.S., then it is defensive asylum. The person must be in removal proceedings in immigration court with the Executive Office for Immigration Review (EOIR). There are two ways in which defensive asylum can be processed:
1. USCIS has declined the asylum application and that person is before the Immigration Judge, or
2. The person is in removal proceedings because they:
- Were apprehended (or caught) in the United States or at a U.S. port of entry without proper legal documents or in violation of their immigration status, OR.
- Were caught by U.S. Customs and Border Protection (CBP) trying to enter the United States without proper documentation, were placed in the expedited removal process, and were found to have a credible fear of persecution or torture by an Asylum Officer.
If the person is found to be eligible, then the Immigration Judge will grant the asylum. If that person is found to be ineligible for asylum, then the Immigration Judge will also determine whether the person is eligible for any other forms of relief from removal. If that can also not be done, then the person will be ordered to be removed from the U.S. The Immigration Judge’s decision is appealable.