Seeking asylum is a life-changing decision for individuals escaping persecution, violence, or threats to their safety. The United States offers asylum as a form of protection, but the process of applying can be complex. Whether someone applies proactively or as a defense against deportation, understanding the different types of asylum is crucial.
At N400 Harbor Immigration Law, we have worked with many individuals and families through the asylum process. We know how important it is to have the right information and legal guidance when seeking protection in the U.S. In this guide, we’ll walk through the two primary types of asylum—affirmative and defensive—so you can better understand what to expect and how to move forward.
What Is Affirmative Asylum?
Affirmative asylum is for individuals who are not currently in removal proceedings and want to proactively apply for protection in the U.S. This process starts with the United States Citizenship and Immigration Services (USCIS) and does not involve the immigration court—at least not at first.
How the Process Works
If you are in the U.S. and want to apply for asylum before facing any deportation threats, you must:
- File Form I-589, Application for Asylum and for Withholding of Removal, with the USCIS.
- Submit your application within one year of your arrival in the U.S. (unless exceptions apply).
- Demonstrate that you have a well-founded fear of persecution in your home country due to race, religion, nationality, political opinion, or membership in a particular social group.
The Interview Process
After submitting your application, the USCIS will schedule you for a non-adversarial interview with an asylum officer. This means that unlike in court proceedings, you won’t be arguing your case before a judge. Instead, you’ll have the opportunity to tell your story and explain why you fear returning to your country.
During the interview, you’ll be asked about:
- Your background and reason for seeking asylum.
- Any evidence supporting your case.
- Whether you meet the eligibility requirements.
Possible Outcomes
- Approval – If the asylum officer approves your case, you can live and work in the U.S. and apply for a green card after one year.
- Referral to Immigration Court – If the USCIS does not grant asylum, your case is referred to an immigration judge. This means your case shifts from affirmative to defensive asylum.
Benefits of Affirmative Asylum
- You will not be detained while your case is pending.
- If granted, you can apply for a green card after one year.
- You can include your spouse and children in your asylum application.
What Is Defensive Asylum?
Defensive asylum is requested when an individual is already in removal (deportation) proceedings and seeks asylum as a defense against being deported. This happens when someone:
- Is caught crossing the border without documentation.
- Overstays their visa and is placed in removal proceedings.
- Has been denied affirmative asylum and is now referred to an immigration judge.
The Defensive Asylum Process
Unlike affirmative asylum, defensive asylum is handled in immigration court before a judge and the proceedings are adversarial—meaning the government will argue against granting asylum.
What to Expect:
- The applicant must prove they qualify for asylum, meaning they have a well-founded fear of persecution.
- The government’s attorney will challenge the claim.
- The judge will decide whether to grant asylum, offer another form of relief, or order removal.
Challenges of Defensive Asylum
- Higher burden of proof – Applicants must provide strong evidence to convince a judge that they qualify for asylum.
- Detention is possible – Many defensive asylum seekers are held in immigration detention centers while awaiting their hearings.
- Longer processing times – Immigration court backlogs can cause significant delays.
Potential Outcomes
- Grant of Asylum – If the judge approves the application, the individual can remain in the U.S. and apply for a green card after one year.
- Denial and Removal Order – If denied, the individual may be deported unless other forms of relief apply.
- Alternative Relief – In some cases, applicants may qualify for withholding of removal or protection under the Convention Against Torture (CAT).
Key Differences: Affirmative vs. Defensive Asylum
| Factor | Affirmative Asylum | Defensive Asylum |
| Who Applies? | People not in removal proceedings | People already in removal proceedings |
| Where to File? | USCIS | Immigration Court |
| Decision Maker? | Asylum Officer | Immigration Judge |
| Type of Process? | Non-adversarial (interview) | Adversarial (court hearing) |
| Detention? | No detention during the application | Possible detention |
| Approval Rates | Generally higher | More difficult to win |
| Burden of Proof | Must show fear of persecution | Must prove fear of persecution and counter government opposition |
Why Having a Lawyer Matters
Asylum cases are complex and high-stakes—a mistake in the process can result in deportation. An experienced asylum and deportation defense attorney can:
- Assess eligibility and build a strong case.
- Gather evidence and prepare documentation.
- Represent you in interviews or court hearings.
- Challenge government arguments against your case.
At N400 Harbor Immigration Law, we have helped countless individuals and families present their asylum claims effectively. Having a skilled lawyer on your side can make all the difference in securing protection in the U.S.
Which Asylum Process is Right for You?
Choosing the right asylum process depends on your situation:
- If you are not in removal proceedings, affirmative asylum is the best route.
- If you are facing deportation, defensive asylum may be your only option.
Regardless of where you are in the process, speaking with an immigration attorney can help you determine the best strategy for your case.
Need Help With Asylum? Contact N400 Harbor Immigration Law
If you or a loved one is seeking asylum, facing deportation, or needing guidance on immigration matters, we can help. At N400 Harbor Immigration Law, we provide compassionate, knowledgeable legal representation to individuals coursing the complex U.S. immigration system.
Call us at 305-396-8882 or visit our office in Pompano Beach, Florida. You can also reach out through our Contact Us page to schedule a consultation. Your safety and future in the U.S. matter and we are here to help you take the next step in securing protection and peace of mind.
Schedule a Free Case Evaluation