How did I end up in defensive asylum, and what is different?
You are in this track if DHS filed a Notice to Appear against you, or if USCIS sent your affirmative application to the court. Once a judge has the underlying case, the regulation gives that judge sole jurisdiction over asylum, with an exception USCIS recognizes for unaccompanied children. What changes is the setting. An affirmative interview is with an officer. Here the hearing is adversarial: an ICE attorney opposes you, may cross-examine you and can use your earlier statements. You need the Form I-589 filed in that court, and the judge will set the dates. An application already filed at USCIS and referred stays relevant, but you should review it for errors now, because the judge will compare it with your testimony. Filing with the court is also the point at which the fee, biometrics and notice rules start to matter. The master calendar hearing is usually where your request is first put on the record.
Can the judge end my application before a full hearing?
Yes. This is the largest change of the past year, and it is why the form itself must be strong. Since Matter of H-A-A-V- in 2025, a judge may pretermit, meaning reject without a merits hearing, if the facts you allege, read in your favor, do not show prima facie eligibility. In September 2026 the Board added that the judge may do this for asylum and withholding without a DHS motion. A list of fears is not enough. The application must say who harmed or would harm you, why, and how that connects to race, religion, nationality, political opinion or a particular social group. In that case the applicant lost because he identified no specific evidence and argued mainly that the judge should have developed the record further. Do not count on the judge to do that. Ask your lawyer to test the written claim against each element before the merits date.
What is an asylum cooperative agreement, and can it send me to another country?
The statute bars an asylum application if you can be removed under an agreement to a third country, not your own, that offers access to a fair asylum procedure. DHS has invoked such agreements in court. In reported 2025 and 2026 Board decisions these included Honduras, Guatemala and Ecuador. DHS may raise this at a hearing, and in July 2026 the Board held that an oral motion gave enough notice. You then carry the burden: you must show it is more likely than not that you would be persecuted on a protected ground or tortured in that third country. Fear of your home country is not the question. In June 2026 the Board said a hearing is generally unnecessary if the record shows no individualized risk there. If the bar applies, the regulation says you cannot seek withholding or torture protection here either, and you can be ordered to the third country. Prepare evidence about that country the moment it is named. Other relief stays open, and the statute exempts unaccompanied children from this bar.
I am from Russia and fear being drafted. Does that qualify?
Not by itself. In Matter of R-A-N-, decided July 7, 2026, the Board vacated a grant of asylum to a Russian man who left for Turkey in October 2022 amid mobilization and later received a summons through his mother. Lack of a link to a protected ground defeated both asylum and withholding, so the case went back only for torture protection. The Board held that conscription is not a standalone ground. A claim must connect to race, religion, nationality, a particular social group or political opinion. International condemnation of the Russian military is not enough. You must show that you yourself would necessarily be required to engage in inhuman conduct on account of a protected ground. Harsh punishment for evasion also needs that link. So the record should show why the state would target you: for example public opposition, religious objection or ethnicity, with documents. Summonses, messages, posts and arrest records all matter; see also our note on country conditions evidence. The Board addressed two unpublished Ninth Circuit decisions that suggested otherwise and clarified that this exception still requires the link. Ask counsel how to preserve the point in that circuit.
What if I hold citizenship in an EU country or another listed country?
This matters to many Russian speakers from the Baltics and to anyone with a second passport. In Matter of B-S-A-N-, decided October 9, 2026, the Board said judges should generally deny asylum to nationals of highly developed democracies, typically at the master calendar stage, unless extraordinary national security or foreign policy circumstances exist. It extended this to withholding and torture claims. The category includes every European Union member, which covers Latvia, Lithuania and Estonia, plus Iceland, Liechtenstein, Norway, Switzerland, Monaco, Andorra, San Marino, the United Kingdom, Canada, Australia, New Zealand, Japan and South Korea. EU citizens are also presumptively ineligible for asylum as a matter of discretion, because they may live in another member state. Dual citizens must show fear and lack of protection in each country of citizenship. The decision addressed citizens, so a person who holds residence but not citizenship should ask a lawyer how it applies. Tell your lawyer about every passport you hold or could claim.
Is there any way around the safe-country ruling?
The openings are narrow, but they exist. The Board said the list is not fixed: countries may be added to or removed from the category as conditions change, and country conditions evidence in an individual case may warrant that. So the first task is specific, documented proof that your government cannot or will not protect you. An EU citizen has a second hurdle. The Board said such a person would not be entitled to asylum as a matter of discretion unless he or she shows an inability to live safely in any of the other 26 member states, and that the presumption may otherwise be overcome on national security or foreign policy grounds. Evidence about your home country alone will not meet that test. The Board called one French citizen's claim patently meritless while noting it may not be frivolous, so have a lawyer weigh the risk before you file.
What if my asylum is barred? What are the fallbacks?
Three protections are decided together, and they are not equal. Asylum is discretionary and can extend to your spouse and children, but it has the one-year deadline and other bars. Withholding of removal has no one-year limit, but the I-589 instructions say it covers only you, and it requires a clear probability of harm on a protected ground. Torture protection needs no protected ground, but the Board has repeatedly rejected claims resting on general country conditions, as in the 2026 decisions Matter of K-Y-V-R- and Matter of H-L-S-M-. Evidence must be specific to you. If one is unavailable, argue the others. But a withholding grant can cost you asylum. In Matter of P-A-C-, decided June 22, 2026, the Board said that because withholding already blocks removal to the country you fear, a judge can deny asylum as a matter of discretion despite the danger of persecution, even if the adverse factors are not among the most egregious. That respondent kept withholding and lost asylum. Since withholding does not cover a spouse or children, this can close the family route, so deal with any adverse history before the hearing.
Who hears my testimony, and who will find out?
Many people from Russia, Belarus and Central Asia fear that relatives or officials will learn what they say. Removal hearings are generally open to the public, but the regulation on asylum hearings says the evidentiary hearing is open unless you expressly ask to close it, and the judge must ask whether you want that. Make the request before testimony begins, through your lawyer. EOIR's July 2026 memorandum stresses that hearings are generally open to observers, so do not assume privacy without that step. The court may send a copy of your application to the State Department, whose reply, if any, is given to you and to DHS. An interpreter is provided in court, so tell the judge at once if you do not understand. You will be examined under oath, and you may call witnesses. Do not contact your consulate or renew a passport without advice, since those steps may be raised against your fear. For the mechanics of the day, see our individual hearing guide.
When should I get a lawyer involved?
Before you file, and certainly before your first court date, because a safe-country or third-country motion can arrive at a master hearing. A pending family petition will not stop a pretermission ruling, as the Board said in June 2026, so a lawyer should plan every form of relief at once. You should also understand the risk of losing: a removal order can follow, and the appeal clock on Form EOIR-26 runs from the decision. Our asylum page explains how we prepare these cases. Anna Tsibel, Ace Immigration's attorney, speaks Russian, is licensed by the California bar and can test your written claim against these recent rulings. No lawyer can promise a result. Request a consultation and bring your Notice to Appear, your I-589 if filed, every passport and any document showing what happened to you.