no need to leave your home to receive legal consultations and services - Call or click to learn more about phone and videoconferencing with our attorneys

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

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

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. ​

emrah kurtic 2/16/2017 09:22:26 am

What Is The Difference Between. race, and nationality, for asylum.

Reply Kevin O'Flaherty 2/23/2017 02:53:49 pm

Emrah:Thanks for your question. Race is your ethnicity. Nationality is your country of origin. If you are likely to be persecuted in your home country because of either, asylum may be an option. I hope this answers your question. Please let me know if you have any follow up questions.

Additional Financial Considerations
from Financial Experts

From Financial Experts

For many years, financial institutions have been creating a disservice to clients and the industry as a whole for years.
View More Professional Considerations

Presented By O'Flaherty Law

Illinois defensive asylum explained

Need Legal Help? 

Schedule a

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.

Leave a Comment With Your Questions

Read more about


We offer free, paid & Online CONSULTATION in:


Schedule a consultation with our Illinois & Iowa Attorneys

We offer free, paid & online consultation in nearly every area of law throughout Illinois and Iowa. We have a range of options to assist you with your legal needs.

What happens at a legal consultation?
Meet with an attorney for a free consultation to discuss what type of matter you need to discuss with an attorney.
Over the Phone Legal Consultations
Similar to In-person consultations, you discuss your legal needs with our attorneys to discuss your matter.
An online consultation is like an in-person and an over the phone online Consultation. You meet face to face with our attorneys through our online portal.
Paid Legal Consultations
While a free consultation allows us to discuss what we can do in general terms for your legal matter, a paid consultation allows us to answer direct questions.

More Illinois Immigration Law Episodes

Illinois Immigration Law Videos

contact us

Monday to Friday
9am - 5pm

Contact Us
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 free consultation for legal advice specific to your situation.

Here are some articles that may interest you
Schedule a

Contact us for a Free Consultation

Schedule a free consultation

O'Flaherty Law is happy to meet with you by phone or at our office locations in:

Who We Are
We are your community law firm. Our Illinois & Iowa 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.

Some of Our Accomplishments

Best Child Support Lawyers in Chicago
DuPage County Probate Attorney
Kevin P. O'Flaherty
Rated by Super Lawyers

loading ...
Naperville attorney
DuPage County Probate Attorney

Subscribe to our mailing list

* indicates required