Does the respondent fear returning to their home country — for any reason, even one they didn't apply for asylum on at the border?
Defensive asylum filed inside removal proceedings is governed by INA § 208 and reviewed under a fundamentally different framework than affirmative asylum. The one-year filing bar under § 208(a)(2)(B) has *changed circumstances* and *extraordinary circumstances* exceptions. Withholding of removal under INA § 241(b)(3) and Convention Against Torture under 8 CFR § 208.16 have *no* one-year bar and lower discretionary risk — they are essential backstops we file alongside asylum in nearly every case where fear exists.
Context & Examples
Real example — Andrés, Tracy. Andrés had been in the U.S. 19 years, no criminal record, but his cousin had been murdered in 2024 by a cartel that texted Andrés directly threatening him. He was in removal for an old NTA. We filed defensive asylum on imputed political opinion + family social group, withholding of removal, and CAT. The IJ granted withholding (lower burden, no one-year bar) even though asylum was time-barred. Andrés cannot be removed to Mexico. He works legally on his withholding-based EAD.
Horror story — same fact pattern, no attorney. A Sacramento respondent in 2023 only filed asylum, not withholding or CAT. The IJ denied for the one-year bar. Did not appeal because his attorney told him "you didn't have a real claim." Removed 2024. Murdered in his hometown three months later. We will spend the rest of our careers haunted by cases like this.
Why an attorney is essential: Filing only what the form prompts you to file is the deadliest mistake a pro se respondent can make. Asylum, withholding, and CAT are separate forms of relief that must each be raised at the master calendar — they are not assumed.
Sources