When you face removal proceedings and fear returning to your home country, raising an asylum claim as a defense against deportation may be your most critical form of relief. Our attorneys represent individuals before immigration judges in Albany, Buffalo, and New York City, preparing thorough asylum applications and presenting compelling evidence to protect those who face persecution throughout the Capital District and beyond.
Defensive asylum is an asylum claim raised as a defense against deportation in removal proceedings before an immigration judge. Unlike affirmative asylum — which is filed proactively with USCIS before removal proceedings begin — defensive asylum arises when the Department of Homeland Security has already initiated removal proceedings by filing a Notice to Appear (NTA) with the immigration court. At Mandi Law Group in Albany, our attorneys represent individuals throughout the Capital District and greater New York who are facing deportation and need to present asylum claims as their defense before the immigration judge.
To qualify for asylum, the applicant must demonstrate a well-founded fear of persecution on account of one of five protected grounds established by the Immigration and Nationality Act: race, religion, nationality, membership in a particular social group, or political opinion. The persecution must be carried out by the government of the applicant's home country or by individuals or groups that the government is unable or unwilling to control. Establishing the nexus between the harm suffered and a protected ground is one of the most critical — and often most challenging — elements of an asylum case.
The burden of proof in a defensive asylum case rests on the applicant. You must present testimony and evidence that persuades the immigration judge that your claim is credible and that you meet the legal standard for asylum. Under the REAL ID Act, the judge evaluates the totality of the circumstances — including the demeanor, candor, and consistency of the applicant — when making credibility determinations. Corroborating evidence, including country conditions documentation, medical and psychological evaluations, expert witness declarations, and supporting documents, is expected whenever reasonably available. Our attorneys build comprehensive evidentiary records designed to meet and exceed these standards.
Although asylum applications generally must be filed within one year of arrival in the United States, important exceptions apply in the defensive context. Changed circumstances that materially affect eligibility — such as deteriorating country conditions or changes in personal circumstances — and extraordinary circumstances such as serious illness, legal disability, or ineffective assistance of prior counsel may excuse a late filing. In immigration court, our attorneys present detailed evidence and legal arguments supporting these exceptions so that the judge may reach the merits of your claim despite the one-year deadline.
The strength of a defensive asylum case depends on thorough declaration preparation, comprehensive country conditions evidence, and, where appropriate, expert witnesses who can corroborate the conditions in your home country. Insufficient preparation can result in a denial that is difficult to reverse on appeal. Contact our office immediately to begin building your case.
(518) 698-0347Our defensive asylum practice covers every aspect of raising an asylum claim in removal proceedings — from initial case assessment and evidence gathering through courtroom advocacy and appeals. Each case receives meticulous preparation and aggressive representation.
When the government has initiated removal proceedings against you, filing a defensive asylum application before the immigration judge may be your most important form of relief. Our attorneys prepare comprehensive Form I-589 applications that clearly articulate the persecution you have suffered or fear, establish the nexus between the harm and one of the five protected grounds — race, religion, nationality, membership in a particular social group, or political opinion — and present a detailed personal declaration that conveys your experiences with specificity and credibility. We work closely with you to develop a complete record that addresses the legal standards the immigration judge will apply, including the well-founded fear standard for asylum and the particular social group framework as interpreted by the BIA and the Second Circuit.
Individuals subject to expedited removal or who have a prior removal order may be entitled to a credible fear or reasonable fear screening before an asylum officer. These screenings determine whether you will be referred to an immigration judge for a full hearing on your asylum or withholding of removal claim. Credible fear interviews require demonstrating a significant possibility that you could establish eligibility for asylum. Reasonable fear interviews apply a higher standard and must show a reasonable possibility of persecution or torture. Our attorneys prepare you thoroughly for these interviews — reviewing your testimony, organizing supporting evidence, and ensuring you understand the process and the questions you will face. If the asylum officer issues a negative determination, we pursue review before an immigration judge to challenge the finding.
The strength of an asylum case often depends on the quality and depth of the country conditions evidence presented to the immigration judge. Our attorneys compile comprehensive evidentiary packages that include U.S. State Department Human Rights Reports, reports from the United Nations High Commissioner for Refugees (UNHCR), documentation from Human Rights Watch, Amnesty International, and other nongovernmental organizations, expert witness declarations from scholars and professionals with specialized knowledge of conditions in the applicant's home country, current news reports from credible media sources, and academic research and publications. We present this evidence in a structured, accessible manner that corroborates your individual claim and demonstrates the objective conditions in your country of origin that support your fear of persecution or torture.
When asylum is unavailable — whether due to the one-year filing deadline, a criminal bar, or other disqualifying factors — withholding of removal under INA Section 241(b)(3) and protection under the Convention Against Torture (CAT) may provide alternative relief from deportation. Withholding of removal requires demonstrating a clear probability of persecution on account of a protected ground — a higher standard than the well-founded fear required for asylum. CAT protection requires showing that it is more likely than not that you would be tortured by or with the acquiescence of a government official if returned to your home country. Our attorneys present detailed evidence of past harm, government involvement or acquiescence, and country conditions to meet these demanding legal standards before the immigration court in Albany, Buffalo, or New York City.
Understanding the defensive asylum process helps you prepare effectively and reduces uncertainty during removal proceedings. Here is what to expect at each stage of your case.
We begin with an urgent, comprehensive evaluation of your case — reviewing the Notice to Appear, your immigration history, the basis of your fear of persecution or torture, and any deadlines that apply. We identify whether you qualify for asylum, withholding of removal, CAT protection, or multiple forms of relief, and develop a defense strategy tailored to your circumstances.
Our attorneys work with you to prepare a detailed personal declaration, gather corroborating evidence including country conditions reports, medical and psychological evaluations, expert witness declarations, and supporting documentation that establishes the factual foundation of your claim. Thorough documentation is critical to meeting the evidentiary burden before the immigration judge.
At the individual hearing (merits hearing), we present your case to the immigration judge — introducing evidence, conducting direct examination of you and any witnesses, cross-examining the government's witnesses, and arguing the legal standards that support a grant of asylum, withholding of removal, or CAT protection. Persuasive courtroom advocacy is essential at this stage.
If the immigration judge grants relief, we ensure proper documentation of the decision and advise you on next steps, including the path to lawful permanent residence through asylum. If the judge denies the claim, we file a timely appeal to the Board of Immigration Appeals and pursue every available avenue to protect you from removal, including motions to reopen based on changed country conditions.
Defending Your Right to Protection
Thorough preparation and aggressive advocacy in immigration courts across New York
Defensive asylum cases involve complex legal standards, strict evidentiary requirements, and high stakes. Understanding these key considerations from the outset strengthens your case and protects your right to protection from persecution.
Asylum applications generally must be filed within one year of arrival in the United States. However, individuals in removal proceedings may qualify for exceptions to this deadline based on changed circumstances that materially affect eligibility — such as a change in country conditions, a change in personal circumstances (including coming out as LGBTQ+), or the passage of new law or regulation. Extraordinary circumstances, including serious illness, mental or physical disability, ineffective assistance of prior counsel, or the applicant being a minor, may also excuse a late filing. In defensive cases before the immigration judge, our attorneys thoroughly document the basis for any applicable exception and present persuasive arguments for why the court should reach the merits of your claim despite the deadline.
Immigration judges expect asylum applicants to corroborate their claims with documentary evidence when such evidence is reasonably available. The REAL ID Act requires that the applicant provide evidence corroborating otherwise credible testimony unless the applicant demonstrates that such evidence is not reasonably available. This means that in addition to your personal declaration, you should provide medical records documenting injuries, psychological evaluations, affidavits from family members or witnesses, photographs, police reports, country conditions evidence, and any other documentation that supports your claim. Our attorneys help you identify what corroborating evidence is available and, where evidence is unavailable, prepare explanations that satisfy the court's requirements.
The immigration judge's assessment of your credibility is often the most critical factor in the outcome of your case. Under the REAL ID Act, the judge evaluates the totality of the circumstances, including the demeanor, candor, and responsiveness of the applicant, the plausibility of the account, the consistency between written and oral statements, the internal consistency of the testimony, and any inaccuracies or falsehoods. Even minor inconsistencies between your declaration and your testimony can undermine your credibility if not properly explained. Our attorneys prepare you thoroughly for testimony, conduct practice sessions, and ensure that your declaration and supporting evidence are internally consistent and aligned with your oral testimony.
Experienced asylum attorneys always consider and preserve alternative forms of relief in case the primary asylum claim is denied. Withholding of removal under INA Section 241(b)(3) provides protection from deportation to a specific country if the applicant can establish a clear probability of persecution. Convention Against Torture (CAT) protection is available regardless of criminal bars that may preclude asylum and withholding. In some cases, the applicant may also be eligible for cancellation of removal, adjustment of status, voluntary departure, or other forms of relief that should be explored simultaneously. Our attorneys identify and pursue all viable forms of relief from the outset, ensuring that no avenue of protection is lost due to procedural default or missed deadlines.
Answers to some of the most frequently asked questions about defensive asylum in removal proceedings. Every situation is unique — consult with our attorneys for guidance specific to your case.
Defensive asylum is an asylum claim raised as a defense against deportation in removal proceedings before an immigration judge. Affirmative asylum, by contrast, is filed proactively with USCIS by individuals who are not in removal proceedings. The key difference is the forum: affirmative applications are initially adjudicated by an asylum officer in a non-adversarial interview, while defensive applications are heard by an immigration judge in a courtroom setting where the government is represented by a trial attorney from ICE. If an affirmative application is denied, the applicant is typically referred to immigration court where the claim becomes a defensive one. Our attorneys represent individuals in defensive asylum proceedings before the immigration courts in Albany, Buffalo, and New York City.
To qualify for asylum, you must demonstrate that you have been persecuted or have a well-founded fear of future persecution on account of one of five protected grounds: race, religion, nationality, membership in a particular social group, or political opinion. The persecution must be carried out by the government of your home country or by individuals or groups that the government is unable or unwilling to control. Membership in a particular social group is the most complex ground, requiring that the group be defined by an immutable or fundamental characteristic, be socially distinct in the society in question, and be particular (not overly broad). Our attorneys analyze the facts of your case to identify the strongest protected ground and develop the legal arguments to support it.
Generally, asylum applications must be filed within one year of your last arrival in the United States. However, there are important exceptions. You may file after the one-year deadline if you can demonstrate changed circumstances that materially affect your eligibility — such as deteriorating conditions in your home country, a change in your personal circumstances, or new legal developments. You may also qualify if extraordinary circumstances prevented you from filing on time, such as serious illness, legal disability, ineffective assistance of prior counsel, or maintaining lawful status until a reasonable period before the filing. In defensive cases, our attorneys present detailed evidence supporting the applicable exception and argue persuasively before the immigration judge that the late filing should be excused.
A credible fear interview is conducted by an asylum officer, typically while the individual is in immigration detention. The purpose is to determine whether the individual has a significant possibility of establishing eligibility for asylum. During the interview, the asylum officer will ask about your identity, nationality, the reasons you fear returning to your home country, any past harm you have experienced, and whether you would face persecution or torture if returned. You have the right to have an attorney or representative present and to present evidence supporting your claim. If the asylum officer finds that you have a credible fear, you will be referred to an immigration judge for a full hearing on the merits. If the finding is negative, you have the right to request review by an immigration judge. Our attorneys prepare clients thoroughly for credible fear interviews to maximize the likelihood of a positive determination.
Both asylum and withholding of removal provide protection from being returned to a country where you face persecution. However, there are important differences. Asylum requires a well-founded fear of persecution (generally interpreted as a 10% or greater chance), while withholding of removal requires a clear probability of persecution (more likely than not, or greater than 50%). Asylum is a discretionary form of relief — meaning the judge can deny it even if you meet the standard — while withholding is mandatory if the standard is met. Asylum leads to a path to permanent residence and eventual citizenship, while withholding does not confer a direct path to a green card. Asylum is subject to the one-year filing deadline and certain criminal bars, while withholding has a higher standard but fewer bars. Our attorneys evaluate which forms of relief are available in your case and pursue them simultaneously before the immigration judge.
Convention Against Torture protection is available to individuals who can demonstrate that it is more likely than not that they would be tortured if returned to their home country. Unlike asylum and withholding of removal, CAT protection does not require a nexus to one of the five protected grounds — it focuses solely on whether you would face torture by or with the acquiescence of a public official or person acting in an official capacity. CAT protection is available even to individuals with serious criminal convictions that would bar them from asylum and withholding. There are two forms of CAT protection: withholding of removal under CAT (which prevents deportation to the specific country) and deferral of removal under CAT (which provides less stable protection and can be terminated if conditions change). Our attorneys present detailed evidence of past torture, government involvement, and country conditions to establish eligibility for CAT protection before the immigration court.
Preparation is the most critical factor in the outcome of a defensive asylum case. You should work closely with your attorney to prepare a detailed, accurate personal declaration that describes the persecution you experienced or fear, including dates, locations, and the identities of the perpetrators. You should gather all available corroborating evidence — medical records, psychological evaluations, photographs, police reports, affidavits from witnesses, and identity documents. Your attorney should compile comprehensive country conditions evidence and, where appropriate, arrange for expert witness testimony. Before the hearing, you should practice your testimony extensively so that you can present your account clearly, consistently, and confidently. Our attorneys conduct thorough hearing preparation, including mock testimony sessions, to ensure our clients are ready to present the strongest possible case to the immigration judge.
If the immigration judge denies your asylum claim, you have the right to appeal to the Board of Immigration Appeals (BIA) within 30 days of the decision. The appeal must be filed on time — there are no extensions. The BIA reviews the immigration judge's decision for errors of law and, in some cases, errors of fact. Our attorneys prepare detailed appellate briefs identifying specific legal and factual errors in the judge's decision. If the BIA affirms the denial, you can file a petition for review with the U.S. Court of Appeals for the Second Circuit (for cases originating in New York). Additionally, if country conditions change materially after the denial, you may file a motion to reopen with the BIA presenting the new evidence. Our attorneys pursue every available avenue to protect our clients from removal following an adverse decision, including appeals, motions to reopen, and motions to reconsider.
Our deportation defense practice covers the full spectrum of relief available in removal proceedings before the immigration courts.
Our attorneys provide comprehensive legal services across multiple practice areas.
Helping families stay together through marriage-based green cards, fiance visas, family reunification petitions, and relative sponsorship applications.
Strategic visa solutions for employers and professionals, including H-1B specialty workers, L-1 transfers, EB-5 investors, and PERM labor certification.
Guiding lawful permanent residents through the naturalization process, from application preparation and test readiness to interview coaching and document review.
Aggressive defense for individuals facing removal proceedings, including asylum claims, cancellation of removal, and appeals before immigration courts.
Compassionate representation for individuals seeking protection from persecution, including asylum applications, refugee processing, and CAT protection claims.
Comprehensive immigration compliance solutions for businesses, including I-9 audits, global mobility programs, and immigration policy development.
Experienced advocacy for individuals seeking waivers of inadmissibility, including I-601 hardship waivers, I-601A provisional waivers, and fraud waivers.
Dedicated legal support for crime victims seeking U-visa immigration relief, including certification assistance, application filing, and family derivative petitions.
Skilled appellate representation before the BIA and federal courts, including motions to reopen, motions to reconsider, and appeals of adverse immigration decisions.
Whether you are facing removal proceedings and need to raise an asylum claim, have been scheduled for a credible fear interview, or need help preparing country conditions evidence and expert testimony, our experienced deportation defense attorneys in Albany and the Capital District are here to fight for your protection. Every consultation is confidential and without obligation.