Types of Asylum Cases

Asylum, by definition, is an inviolable place of refuge and protection giving shelter to criminals and debtors. For some, it may be considered as an excuse to live as a lawful permanent resident in a foreign country (i.e., United States) but to asylum seekers, this maybe their last sort of security and safety.

Asylum cases vary from each other base on the seeker’s location or citizenship standing; in the United States, this is categorized into two main topics: affirmative and defensive. To further explain the distinction between the two, here is an elaboration regarding both categories.

Affirmative Asylum

This means the person or the asylum seeker is not in removal proceedings (U.S. government orders to have the person deported from the United States). The seeker may openly apply for asylum through U.S. Congress or Consul together with the United States Citizenship and Immigration Services (USCIS) and the Department of Homeland Security (DHS).

In order to be considered as an affirmative asylum, the seeker must first be physically present in the United States. However, regardless of having been in the U.S., a seeker may not be eligible for application if he or she had done the following:

  • He or she have not filed an application for asylum and withholding of removal after a year of the seeker’s latest arrival.
  • He or she had already filed an asylum application but was denied by an immigration judge or Board of Immigration Appeals
  • He or she can be deported to a secured third world country under a multi-party agreement by different countries and the United States

Defensive Asylum

On the contrary, a defensive asylum seeker means a person that is under removal proceedings. He or she may apply for asylum defensively through an immigration judge at the Executive Office for Immigration Review (EOIR) in the Department of Justice.

To put it simply, a defensive asylum seeker is applying for being against his or her deportation from the United States. An asylum seeker can be considered defensive if:

  • He or she have entered the United States port of entry without appropriate legal documents or any immigration violations
  • He or she have found to have illegal documentations, were placed in a removal process, and were found to have a valid fear of persecution or aggressive interrogation by an asylum officer


Both of the two categories are free to hire an immigration lawyer to be able to represent themselves in the court room. In some cases, asylum seekers are best represented by their legal representatives that commonly make them an asylee. This is why it is important to be able to be aware of what type of seeker you are and who to call to represent your case, such as your nearest asylum attorney.

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