Applying for asylum in immigration court means presenting a legal defense to removal, not simply submitting a form and waiting for an approval. In Episode 26 of the ImmiGreat Podcast, Richard Wilner explains why a complete application, a clearly identified legal basis, and careful preparation matter before a full hearing ever begins.
The episode covers defensive asylum, pretermission, filing deadlines, third-country issues, annual asylum fees, credibility, and the differences between asylum and withholding of removal.
This article summarizes Episode 26 and provides general educational information as of November 4, 2026. It is not individualized legal advice.
What Is Defensive Asylum?
Defensive asylum is a request for protection made in removal proceedings. A case may reach immigration court after a USCIS referral or through another process that places the person in proceedings. An immigration judge generally decides the asylum application in this setting, although jurisdictional exceptions require individual review.
As Richard explains, the applicant must present facts supporting eligibility for protection. A sincere fear of returning home is important, but the legal analysis also asks what harm occurred or is feared, who is responsible, and why the person is being targeted.
The Protected Ground and the Connection to the Harm
Asylum concerns past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The connection between the persecution and a protected ground is often called nexus.
Generalized crime, cartel activity, or war does not by itself establish every element of an asylum claim. Explain the individual circumstances and the reason for the feared harm. The government’s role, its ability or willingness to control a private persecutor, and other eligibility requirements also need review. See EOIR’s overview of asylum and related protection.
Can an Asylum Case End Before a Full Merits Hearing?
Yes. Richard discusses pretermission, which means resolving an application without a full evidentiary hearing on its merits. A filing must do more than describe difficult conditions; it must present a legally sufficient claim.
In Matter of H-A-A-V-, 29 I&N Dec. 233 (BIA 2025), the Board explained that a judge may pretermit a claim when its factual allegations, viewed in the applicant’s favor, do not establish prima facie eligibility. The decision also recognizes that disputed material facts may warrant a full hearing. The record, procedural protections, and controlling circuit law matter.
Avoid assuming that filing an I-589 guarantees a later opportunity to supply missing facts. Review every question, signature, declaration, and supporting exhibit with counsel, and comply with the court’s deadlines.
Watch the One-Year Filing Deadline
Asylum generally must be requested within one year of the person’s last arrival in the United States. Changed circumstances affecting eligibility or extraordinary circumstances relating to a filing delay may support an exception. The applicable exception and timing must be established; do not assume that a future court hearing extends the deadline. See INA § 208, 8 U.S.C. § 1158.
Third-Country Issues Need Their Own Analysis
The episode discusses asylum cooperative agreements and the possibility of removal to a country other than the applicant’s home country. A safe-third-country eligibility issue and the government’s proposed country of removal involve distinct legal questions; an agreement’s existence alone does not resolve every person’s case.
If DHS identifies another country, tell counsel about any individualized fear of harm there. Relevant country reports can provide context, but the record should explain how that evidence relates to the person’s circumstances. Do not assume that generalized reports alone establish the required personal risk, or that country reports have no value.
Annual Asylum Fees and Proof of Payment
Richard emphasizes the importance of addressing any required annual asylum fee. EOIR’s Payment Portal FAQ explains its annual-fee process, written payment orders, and digital receipts. Review the current instructions and any order in your case, confirm the deadline and amount, and keep proof of payment for counsel and the court as required.
Fee implementation and legal challenges can change. Do not rely on an old fee amount or assume that every pending application has the same due date. Promptly raise a payment notice or missed deadline with your attorney.
Preparing Your Application and Testimony
- Identify the legal basis: Explain the protected ground and its connection to the harm in the application and declaration.
- Complete the record: Answer the form’s questions and provide available supporting evidence. Discuss missing documents and inconsistencies early.
- Track court requirements: Keep hearing notices, filing deadlines, payment orders, and receipts organized.
- Prepare truthfully: Review dates and events carefully. Testimony should reflect the person’s actual experiences, not a memorized or invented account.
- Evaluate other protection: Ask counsel about withholding of removal, CAT protection, or another defense when appropriate.
Withholding of Removal Is Different From Asylum
As the episode explains, missing the asylum filing deadline does not necessarily end the analysis of other protection. Statutory withholding of removal has a higher probability standard and different requirements and benefits. It prevents removal to the country covered by the protection, but it does not erase the removal order or categorically prevent removal to another country. Other bars and eligibility rules still require review.
Frequently Asked Questions
Does filing an asylum application guarantee a full hearing?
No. A judge may resolve a legally insufficient application without a full merits hearing in appropriate circumstances. A complete filing, supported legal theory, and timely response to government motions are important.
Can general violence in my home country establish asylum eligibility?
General violence alone does not establish every asylum requirement. The individual facts, protected ground, connection to the harm, and other eligibility issues must be evaluated.
Is withholding of removal the same as asylum?
No. It has a different standard and more limited benefits. It protects against removal to a particular country and does not automatically eliminate the removal order.
Watch or Listen to ImmiGreat Episode 26
Watch Why 95% of Asylum Cases Are Being Denied in Immigration Court above, or listen below. The recording discusses reported denial rates; statistics depend on the reporting period and cases counted and do not predict an individual result.
Watch Episode 26 on YouTube or visit the episode on Buzzsprout.
Get Help Preparing for Immigration Court
If you are in removal proceedings or concerned about an asylum application, contact Wilner & O’Reilly to discuss your circumstances. Browse more ImmiGreat Podcast articles for conversations with Richard Wilner.
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