Defining Asylum

Refugees Welcome
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Asylum is the protection granted by a nation to a person who cannot return to their home country for fear of prosecution.

An asylee is a person who seeks asylum. You may request asylum from the U.S. when you arrive at a U.S. port of entry, or after you arrive in the United States regardless of whether you are in the U.S. legally or illegally.

Since its founding, the United States has been a sanctuary for refugees seeking protection from persecution. The country has granted asylum to more than 2 million refugees in the last three decades alone.


U.S. law defines a refugee as someone who:

  • Is located outside the United States.
  • Is of special humanitarian concern to the United States.
  • Demonstrates that they “were persecuted or fear persecution due to race, religion, nationality, political opinion, or membership in a particular social group.”
  • Is not firmly resettled in another country.
  • Is admissible to the United States. A refugee does not include anyone who “ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.”

So-called economic refugees, those the U.S. government considers to be fleeing poverty in their homelands, are not admissible. For example, thousands of Haitian migrants who washed up on Florida shores have fallen into this category in recent decades, and the government has returned them to their homeland.

How Someone Can Obtain Asylum

There are two routes through the legal system for obtaining asylum in the United States: the affirmative process and the defensive process.

For asylum through the affirmative process, the refugee must be physically present in the United States. It does not matter how the refugee arrived.

Refugees generally must apply to U.S. Citizenship and Immigration Services within one year of the date of their last arrival in the United States, unless they can show extenuating circumstances that delayed filing.

Applicants must file Form I-589, the Application for Asylum and for Withholding of Removal, to USCIS. If the government rejects the application and the refugee does not have legal immigration status, then USCIS will issue a Form I-862, Notice to Appear and refer the case to an immigration judge for resolution.

According to USCIS, affirmative asylum applicants are rarely detained. Applicants may live in the United States while the government is processing their applications. Applicants can also remain in the country while waiting for a judge to hear their case but are seldom allowed to work here legally.

Defensive Application for Asylum

A defensive application for asylum is when a refugee requests asylum as protection against removal from the United States. Only refugees that are in removal proceedings in an immigration court can apply for defensive asylum.

There generally are two ways refugees wind up in the defensive asylum process under the Executive Office for Immigration Review:

  • USCIS has referred them to an immigration judge after the government has ruled them ineligible for asylum after going through the affirmative process.
  • They were placed in removal proceedings because they were apprehended in the United States without proper legal documents or in violation of their immigration status. Or, they were caught trying to enter the United States without proper documents and designated for expedited removal.

It’s important to note that defensive asylum hearings are court-like. They are conducted by immigration judges and are adversarial. The judge will hear arguments from the government and from the petitioner before making a ruling.

The immigration judge has the power to grant the refugee a green card or decide whether the refugee may be eligible for other forms of relief. Either side can appeal the judge’s decision.

In the affirmative process, the refugee appears before a USCIS asylum officer for a non-adversarial interview. The individual must provide a qualified interpreter for that interview. In the defensive process, the immigration court provides the interpreter.

Finding a qualified lawyer is important for refugees trying to navigate the asylum process which can be long and complicated.

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McFadyen, Jennifer. "Defining Asylum." ThoughtCo, Feb. 16, 2021, McFadyen, Jennifer. (2021, February 16). Defining Asylum. Retrieved from McFadyen, Jennifer. "Defining Asylum." ThoughtCo. (accessed May 31, 2023).