New York · est. 2013Saturday, September 5, 2026
Inside Immigration

Plain-language guides to US immigration, asylum and USCIS procedure.

Forms · Humanitarian

Defensive asylum in immigration court

Asylum raised as a defence to removal before an immigration judge. It arises when someone is placed in proceedings, when USCIS refers an affirmative case, or when a person passes a credible fear interview after expedited removal. The judge, not an asylum officer, decides it, and DHS appears as the opposing party.

Typical time: Immigration court cases commonly run two to four years from the notice to appear to a merits decision, longer with an appeal. EOIR does not publish a national median for asylum cases.Fees: $100 at filing, $102 a year while pending, $1,030 for a BIA appeal (waivable), plus work permit fees. No fee waiver is possible for either Public Law 119-21 asylum fee.

Who it is for. Anyone in removal proceedings before an immigration judge who fears persecution or torture in their home country.

The forms, in order

6 forms
EOIR-28EOIR-33/ICI-589I-765EOIR-26EOIR-26A
  1. 1

    Get a lawyer on the record and file the change of address form

    EOIR-28EOIR-33/IC

    Who
    The respondent and their representative
    When
    Immediately after the notice to appear
    Fee
    $0

    An address that is out of date is how most in absentia removal orders happen.

  2. 2

    Attend the master calendar hearing and plead to the notice to appear

    Who
    The respondent
    When
    Usually within weeks or months of the notice to appear
    Fee
    $0

    The judge sets a deadline to file the asylum application at this hearing.

  3. 3

    File Form I-589 with the immigration court

    I-589

    Who
    The respondent
    When
    By the judge's deadline, and within one year of the last arrival unless an exception applies
    Fee
    $100 Public Law 119-21 asylum application fee, paid through the EOIR Payment Portal

    Filing with the wrong court gets the application rejected. EOIR fees must be paid electronically since February 23, 2026.

  4. 4

    Provide biometrics and biographic information to USCIS

    Who
    The respondent
    When
    As instructed after filing
    Fee
    $0

    EOIR filings still need DHS background checks; the instructions for submitting them are on the USCIS immigration benefits in EOIR proceedings page.

  5. 5

    Apply for a work permit once the 180-day clock allows

    I-765

    Who
    The respondent
    When
    Apply after 150 days of a pending application
    Fee
    $520 paper or $470 online plus any Public Law 119-21 fee

    The clock stops for any continuance the respondent requests.

  6. 6

    Attend the individual merits hearing

    Who
    The respondent, with witnesses and evidence
    When
    Often a year or more after the master calendar hearing
    Fee
    $0

    This is the trial. DHS counsel cross-examines and the judge rules, sometimes orally from the bench.

  7. 7

    Appeal an adverse decision to the Board of Immigration Appeals

    EOIR-26EOIR-26A

    Who
    The respondent
    When
    Within 30 days of the judge's decision
    Fee
    $1,030, waivable on Form EOIR-26A

    The 30-day deadline is unforgiving and mailing time does not extend it.

  8. 8

    Pay the Annual Asylum Fee while the case remains pending

    Who
    The principal applicant
    When
    As ordered in writing by the judge or the Board
    Fee
    $102 per year

    Paid through the EOIR Payment Portal under the Annual Asylum Fee filing type.

Where it goes wrong

  • Not updating Form EOIR-33/IC after a move is the leading cause of in absentia removal orders.
  • USCIS address changes do not reach the immigration court; both agencies need telling separately.
  • Requesting continuances stops the work permit clock, so representation delays can cost a year of work authorisation.
  • Filing the I-589 with USCIS when you are in EOIR proceedings gets it rejected and can waste the one-year deadline.
  • EOIR no longer accepts checks or money orders, so a filer without a card or bank account has a real problem.

What changed in 2025 and 2026

  • From February 23, 2026 all EOIR immigration fees must be paid through the EOIR Payment Portal; checks and money orders are refused.
  • The Public Law 119-21 $100 asylum application fee and $102 Annual Asylum Fee apply in immigration court as well as at USCIS.
  • EOIR has consolidated and relocated courts repeatedly since 2025; confirm the filing address on the Find an Immigration Court page before mailing anything.
  • Case completion quotas and reassignments have shortened continuance practice in many courts.

Related processes

Sources: justice.gov · justice.gov · justice.gov · uscis.gov · uscis.gov · uscis.gov