difference between affirmative and defensive asylum

Any individual who can prove that because of their nationality, their political views, their race, their religion, or, because they belong to a social group and that they have a “well-founded fear of persecution” may qualify for asylum. Although that definition may be difficult to understand at first, this article is meant to help clarify the two primary paths for receiving asylum status. Asylum is a legal protection provided by the US government. For full information on asylum status and eligibility requirements, read our page:

“Affirmative” vs. “Defensive” Asylum

The two general paths for getting asylum are generally referred to as “affirmative” and d”efensive” asylum. The difference between the two is that affirmative asylum-seekers are yet to begin the deportation process in the courts. These individuals would present their case in a non-courtroom setting, such as in an immigration office or before the United States Citizen and Immigration Services (USCIS). Defensive asylum-seekers are defending themselves in immigration court.
Defensive asylum-seekers will present their case in front of an immigration judge at the Executive Office for Immigration Review, also known as the EOIR. The USCIS is part of the Department of Homeland Security. The EOIR is connected to the Department of Justice.

Defensive Asylum

A denial by the USCIS of the affirmative application for asylum instantly begins the defensive asylum process. During this process, the applicant is given a second opportunity to present their case before an immigration judge. Individuals who are referred to Immigration Court are entitled to what is referred to as a “de novo” hearing. This means that the immigration judge is allowed to make his own decision and is not bound by the decision that was made by the USCIS.
A favorable decision will only be given if the respondent can clearly show that an individual in their position has a reasonable, credible, well-founded fear of returning to their country of origin. They must show that they have experienced a history of persecution as a result of race, nationality, religion, membership in a particular group, or political opinion. It is important to remember that the guidelines for proving credible fear are not well defined. Because this process requires professional interpretation of federal law, it is not recommended that you pursue asylum without a licensed immigration lawyer.

Asylum Filing Times

Asylum-seekers have one year from the time they arrive in the United States to file for asylum. If they do not apply within one year, they may negate their chances for applying for this relief. This is referred to as the “one year bar.”
Exceptions to this rule include circumstances where the applicant’s home country was safe when they left but recently started a civil war or experienced other changes in the country’s condition that now make it dangerous for the applicant to return home. Other exceptions include serious illness, mental defects, or ineffective assistance of counsel that prevented the applicant from filing within the one-year deadline.

“Fear of Persecution”

If an individual can prove that because of their race, their political background, membership with a social group, or their religion they have a credible fear of persecution, they can apply for asylum. Additionally, if a person was forced to undergo sterilization, abortion, or if there exists a credible fear of genital cutting, they may apply for asylum. In order to meet the well-founded fear standard, a person does not necessarily need to have fear of torture, imprisonment, murder, or have been specifically targeted for economic hardship or mistreated by a repressive government.

Proving Fear of Persecution

A person must be very clear about why they fear persecution. They must make it clear to the courts that they suffered persecution in the past and that the circumstances in their country leading to the persecution has not changed. They must demonstrate credible reasons for fearing persecution in the future if they return to their country. In many circumstances a person’s testimony is compelling enough if it is believable and specific. Some have bolstered their case by providing collaborating proof like newspaper articles, books, photographs, and affidavits of witnesses to the hearing.

Don’t Try to Be Your Own Attorney!

The courts understand how challenging it is for an asylum applicant to prove their claim. It can be an emotional nightmare for individuals who suffered atrocities to recount the circumstances that led them to flee their homeland. For many, simply talking about these events is difficult, doing it in a language that they are trying to learn is all but impossible. Many feel sick just discussing the topic and answering questions about it.
For these reasons, it is not advisable to represent yourself in court. Get clear, professional legal advice from experienced immigration attorneys. If you are interested in finding out if you or a loved one qualify for asylum, call Pride Immigration Law Firm PLLC today or send us a message online and tell us about your case. We are ready to do everything possible to help you reach your goal.

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Beeraj Patel, Esq.

Partner at KPPB Law
Beeraj Patel's philosophy is simple - make it easy for talented and ambitious individuals to have access to immigration materials so that they can make the choice which is right for them.

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