Written by Jayson Elliott · Attorney, Bay Legal PC · CA Bar No. 332479 · Last reviewed April 2026
Asylum as a Defense to Removal
Key Takeaways
- Asylum protects people who face persecution based on race, religion, nationality, political opinion, or membership in a particular social group
- The 1-year filing deadline applies but has exceptions, and defensive asylum (in removal proceedings) has different rules
- Withholding of removal and Convention Against Torture protection are available even when asylum is barred
- Winning asylum gives you the right to live and work in the U.S. and eventually apply for a green card
Asylum in Removal Proceedings (“Defensive Asylum”)
When someone in removal proceedings applies for asylum, it is called “defensive” asylum because the application is being used as a defense against removal. The immigration judge hears the asylum claim as part of the removal proceedings.
Requirements for Asylum
You must demonstrate that you have suffered past persecution or have a well-founded fear of future persecution in your home country, the persecution is based on one of five protected grounds (race, religion, nationality, political opinion, or particular social group), the government of your country is the persecutor or is unable or unwilling to control the persecutor, and you have not been firmly resettled in a third country.
The 1-Year Filing Deadline
Generally, asylum must be applied for within 1 year of arrival in the United States. However, exceptions exist for changed circumstances and extraordinary circumstances. In removal proceedings, the immigration judge determines whether an exception applies.
Withholding of Removal and CAT
If asylum is unavailable (due to the 1-year deadline, criminal bars, or other reasons), you may still qualify for withholding of removal under INA §241(b)(3) or protection under the Convention Against Torture (CAT). These have higher evidentiary standards but are not subject to the 1-year deadline.
Bay Legal PC — Removal Defense Attorneys
Bay Legal PC in Palo Alto handles removal defense cases throughout California. Free initial consultations available.
Get a Free Consultation →Frequently Asked Questions
Can I apply for asylum if I entered the U.S. illegally?
Yes. You can apply for asylum regardless of how you entered the United States. Unlawful entry does not bar you from asylum eligibility.
What happens if my asylum case is denied?
You can appeal to the Board of Immigration Appeals (BIA) within 30 days. If the BIA denies the appeal, you can seek review in federal court through a petition for review.
Can my family members get asylum too?
If you are granted asylum, your spouse and unmarried children under 21 can be included as derivative asylees, even if they don’t have their own persecution claims.
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Jayson Elliott, Bay Legal PC · Palo Alto, California
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