Asylum and
Withholding of Removal
Asylum: Affirmative & Defensive
The difference between affirmative asylum and defensive asylum is that an affirmative asylum-seeker is able to apply for asylum through the United States Citezenship & Immigration Services (USCIS) in which a USCIS will review the case and make a decision after an intervew is conducted. This is done without going through the deportation process within an immigration court. However, a denial of an affirmative application will begin the process of the defensive asylum.
Defensive asylum-seekers must present their case before an immigration court judge from the start and must follow appropropriate court procedures by filing their applications and evidence with the imigration court.
Both Affirmative and Defensive asylum-seekers must present their case within one year of their arrival to the U.S.
In order to be granted Asylum, a person must prove that they have been persecuted or fear they will be persecuted on account of race, religion, nationality, and/or membership in a particular social group or political opinion.
Withholding or Removal
WIthholding of Removal is a relief for those that are more likely than not that their life or freedom would e threatened on account of race religion, nationality, membership in a particular social group, or political opinion in the proposed country of removal.
A person is able to file both an asylum and withholding of removal appliication in removal proceedings. However, withholding of removal must meet a higher standard and can only be granted by an immigration judge and if granted, recipients are not able to get benefits that a person granted asylum would get such as work authorization or adjustment of status amongts other benefits.
Unlike asylum, the one-year filing deadline is not required for withholding of removal and is not available to those who are or were a persecutor or has been convicted of any particularly serious crime.