Schedule a Consultation

What Is The Difference Between Affirmative Asylum And Defensive Asylum? | Illinois Immigration Law

Updated on
November 1, 2019
Article written by
Attorney Kevin O'Flaherty

If you have fled another country based on a “well-founded fear of persecution” based on race, religion, nationality, political opinion, or membership in a particular social group, you may be eligible for Asylum in the United States.  If you are granted asylum, after entering the United States either legally or illegally, you will be permitted to remain a resident in the United States.  Both refugees from outside of the country and individuals who have entered the country illegally are eligible for asylum. 

There are two pathways that individuals seeking asylum can follow: (1) Affirmative Asylum; and (2) Defensive Asylum.

1.  Affirmative Asylum

‍Affirmative Asylum is the process for applying for asylum before the U.S. Department of Homeland Security and U.S. Citizenship and Immigration Services after entry into the United States before deportation proceedings have been commenced. 

Affirmative asylum must be filed within one year of your last entry into the U.S. or within 6 months of your status ending (e.g. student visa status), unless you can show extraordinary circumstances for a delay.  Extraordinary circumstances include, but are not limited to:

  • New information that only recently came to your attention; 
  • Changed country conditions; 
  • Recently attacks on family members or other individuals who are similarly situated to yourself; and
  • Post-Traumatic Stress Disorder.

2.  Defensive Asylum

‍Defensive Asylum is filed as a strategy for defending yourself against a pending deportation.  In order to be successful, you must be able to show that deportation to your country of origin will result in fear of persecution because of one of the following conditions: 

  • Race; 
  • Religion; 
  • Nationality; 
  • Political Opinion; or 
  • Social Group. 

‍Legal Permanent Residents (LPR) or Green Card holders are entitled to apply for asylum at any time, not just within one year of entry, as a defense to Removal or Deportation. 

‍Individuals who are apprehended at the border and request asylum, are given the chance to apply for asylum if they pass a Credible Fear Interview, during which an asylum officer will ask a series of questions to determine whether the individual has a credible fear of returning to their country of origin. ​

What Is The Difference Between Affirmative Asylum And Defensive Asylum? | Illinois Immigration Law
Author

Attorney Kevin O'Flaherty

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

What to Expect From a Consultation

The purpose of a free consultation is to determine whether our firm is a good fit for your legal needs. Although we often discuss expected results and costs, our attorneys do not give legal advice unless and until you choose to retain us. Although most consultations are complimentary, some may carry a charge depending on the type of matter and meeting location.


9 am - 5 pm M - F
After 5 pm by Appt
11 am - 3pm Sat by Appt
11 am - 2 pm Sun by Appt

Open Hours

Mon - Fri

9am - 5pm

By Appointment

Mon - Fri

after 5pm

Saturday

11 am - 3pm

Sunday

11 am - 2 pm


9 am - 5 pm M - F
After 5 pm by Appt
11 am - 3pm Sat by Appt
11 am - 2 pm Sun by Appt

Open Hours

Mon - Fri

9am - 5pm

By Appointment

Mon - Fri

after 5pm

Saturday

11 am - 3pm

Sunday

11 am - 2 pm


9 am - 5 pm M - F
After 5 pm by Appt
11 am - 3pm Sat by Appt
11 am - 2 pm Sun by Appt

Contact us for a Free Consultation

Who We are

We are your community law firm. Our Iowa & Illinois Attorneys are committed to providing exceptional client service in a cost-effective manner in the areas of Family Law, Probate, Estate Planning, Civil Litigation, Guardianship, Criminal Defense, Corporate & Contract Law, Bankruptcy and Real Estate.
Disclaimer: Our articles and comment responses do not constitute legal advice and are not intended to create an attorney-client relationship.

Please contact us to schedule a consultation specific to your legal situation.