Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

Full Bio →

Written by

Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

Full Bio →

Reviewed by Jeffrey Johnson
Managing Editor & Insurance Lawyer

UPDATED: Jul 9, 2018

Advertiser Disclosure

It’s all about you. We want to help you make the right legal decisions.

We strive to help you make confident insurance and legal decisions. Finding trusted and reliable insurance quotes and legal advice should be easy. This doesn’t influence our content. Our opinions are our own.

Editorial Guidelines: We are a free online resource for anyone interested in learning more about legal topics and insurance. Our goal is to be an objective, third-party resource for everything legal and insurance related. We update our site regularly, and all content is reviewed by experts.

Asylum is the legal protection afforded by the United States government to a person who can demonstrate a “well-founded fear of persecution” based on race, religion, nationality, political opinion, or membership in a particular social group. Asylees are distinguished from refugees by their presence in the country. They are seeking protection from deportation after having entered the United States, legally or illegally. The opportunity to apply for asylum is offered to both refugees outside the United States and people who have entered the country illegally. Those who can demonstrate a credible fear of returning to their home country due to past persecution based on any of the five protected grounds may receive status in the United States. However, status is never guaranteed.

Two Tracks for Gaining Asylum

People generally refer to the two tracks for gaining asylum as affirmative and defensive. The distinction comes from having to defend oneself in immigration court. Affirmative asylum seekers have not yet begun the deportation process in court. Rather, they present their cases in a less adversarial, office-like setting to immigration officers at the United States Citizenship and Immigration Services (USCIS). Those who file defensive asylums must prove their case to an Immigration Judge at the Executive Office for Immigration Review (EOIR). The USCIS is an agency in the Department of Homeland Security whereas the EOIR is part of the Department of Justice.

If the USCIS officer denies the affirmative applicant asylum, it triggers the defensive process in which the applicant is given another opportunity to prove his or her case before an immigration judge. Respondents referred to the Immigration Court are entitled to a de novo hearing in which the immigration judge is not bound by the prior USCIS decision. Favorable adjudication of an asylum claim always depends upon the respondent’s ability to show that a reasonable person in his or her circumstances would fear returning to the country of origin. This fear must be “credible” and “well-founded,” perhaps due to past incidents of harm in the country of origin. The applicant’s experience of past persecution must also have been based on race, religion, nationality, political opinion, or membership in a particular group.

Get Legal Help Today

Find the right lawyer for your legal issue.

 Secured with SHA-256 Encryption

Asylum Filing Times

Applicants have one year from their time of arrival in the United States to file for asylum. Failure to file within one-year may preclude asylum as a form of relief. This is known as the “one-year bar.” Exceptions to the one-year bar include changed country conditions and extraordinary circumstances beyond the applicant’s control. If the applicant’s home country was safe when he or she left, but recently became embroiled in a bloody civil war, these could constitute “changed country conditions” making it too dangerous to return home. Similarly, “extraordinary circumstances” such as a mental defect, serious illness, or ineffective assistance of counsel could have prevented an applicant from filing within one year of arriving. The applicant is therefore not barred from filing after the deadline.

Getting Legal Help

Applications for asylum, withholding of removal, and protection under the Convention Against Torture can be filed on the same Form I-589. It is advisable to seek the counsel of an immigration attorney before filing this application because the process of seeking asylum can be long and complicated, and may result in removal from the United States.