Legal definition of Affirmative defense

In immigration law, an affirmative defense refers to a strategy aimed at challenging a deportation decision before a USCIS immigration court. This procedure is only available to individuals already undergoing removal proceedings. On appeal, they must present new evidence supporting their fear of persecution in their country of origin.

Similarly, besides the fear of persecution, deportation remains the primary criterion required to be eligible for an affirmative defense. Two scenarios may place an individual in such proceedings :

• In the first scenario, a non-citizen is apprehended at a U.S. port of entry without the necessary legal documents, such as a valid visa or other forms of authorization.
• In the second scenario, a non-citizen is intercepted by Customs and Border Protection (CBP) and immediately placed in expedited removal proceedings. This individual becomes eligible for affirmative defense provided that a USCIS officer discovers risks of persecution upon their return to their country of origin.

To initiate the affirmative defense process, the petitioner must meet four criteria. They must be subject to expedited removal proceedings, clearly express their intent to seek asylum, and substantiate their fear of persecution in their home country. If these conditions are met, a USCIS officer handles the case and conducts a “credible fear interview.” During this stage, they question the petitioner and verify the authenticity of their account. If the threat of persecution is substantiated, they may suspend the deportation proceedings. In some cases, the agency may also issue the petitioner a Notice to Appear before an immigration court. In this specific scenario, it is up to the judge to decide whether to grant asylum or deny the request.

Etymology of Affirmative Defense

The etymology of “affirmative defense” comes from the Latin “affirmativus,” meaning affirmative, and “defensus,” meaning defense. In law, this concept entails a positive assertion of new facts by the defendant to justify or excuse their actions, thereby shifting the burden of proof to the defendant to prove their defense.