Published January 15, 2025 · By Attorney Luis Morales
If you received a Notice to Appear (NTA) — the document that initiates deportation proceedings — you may have the option to request asylum as a defense before the Immigration Court. This process is known as defensive asylum, and it differs from affirmative asylum, which is requested from USCIS when the person is not facing removal proceedings.
To qualify for asylum, you must show that you have suffered persecution or have a well-founded fear of persecution in your home country based on:
Race
Religion
Nationality
Political opinion
Membership in a particular social group
The persecution must come from your country's government or from groups the government cannot or will not control. General violence or ordinary criminal activity, while it may be part of the analysis, is generally not sufficient on its own.
Residents of Kissimmee, St. Cloud, Poinciana, and Osceola County have their immigration cases assigned to the Orlando Immigration Court. The process has two main stages:
Master Calendar Hearing (MCH): The initial hearing where dates and procedures are established. It is critical to appear. If you do not appear, the judge may issue a deportation order in your absence (in absentia order).
Individual Hearing: The merits hearing where the judge hears your case, evaluates evidence, and makes a decision. This hearing can last several hours or several days depending on the complexity of the case.
While your defensive asylum case is pending before the court, you have temporary protection from deportation. Additionally, after 180 days from filing your asylum application, you can apply for a work permit (Employment Authorization Document or EAD). The importance of legal representation throughout this process cannot be overstated — errors or missed deadlines can have serious consequences.
This article is informational and does not constitute legal advice. Every case is unique and outcomes depend on specific facts. Consult with an attorney before making decisions about your case.
Affirmative asylum is requested from USCIS when the person is not in removal proceedings. Defensive asylum is raised as a defense before the Immigration Court when a Notice to Appear (NTA) has already been issued and the government has initiated removal proceedings.
Yes, though the standards are high. You must show that you have suffered persecution or have a well-founded fear of persecution in your home country based on race, religion, nationality, political opinion, or membership in a particular social group. An attorney can help you document and present your case as strongly as possible.
If the immigration judge denies asylum, you have the right to appeal to the Board of Immigration Appeals (BIA) and in some cases to the Federal Court of Appeals. Legal representation at each stage is critical.
It depends on the court calendar. After the initial Master Calendar Hearing, the court will set a date for the individual hearing. There may be months or even years between the two. Use that time to gather evidence with the help of your attorney.
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