What is the definition of a refugee under U.S. law, and what is the difference between applying for asylum affirmatively versus defensively?

Under U.S. immigration law, a refugee is defined as a person who is located outside of the United States and who is unable or unwilling to return to his or her country of nationality (or, in the case of a person having no nationality, the country of his or her last habitual residence) because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. This definition mirrors that established by the 1951 Convention Relating to the Status of Refugees.

There are two main pathways for seeking protection in the United States: refugee resettlement and asylum. Refugee resettlement is an overseas process managed by the Department of State and USCIS, where individuals are vetted and granted refugee status before arriving in the U.S. Asylum, however, is sought by individuals who are already physically present in the United States or who are seeking admission at a U.S. port of entry.

Asylum applications are categorized as affirmative or defensive. Affirmative asylum is filed by individuals who are not in removal (deportation) proceedings. They file Form I-589, Application for Asylum and for Withholding of Removal, directly with U.S. Citizenship and Immigration Services (USCIS). Once filed, the applicant may be eligible for employment authorization after 150 days of filing, provided the application is not frivolous.

Defensive asylum is sought when an individual is already in removal proceedings before an Immigration Judge (IJ) in the Executive Office for Immigration Review (EOIR). The individual raises asylum as a defense against removal. If granted by the IJ, the applicant receives the same status as someone granted asylum affirmatively. It is crucial for individuals seeking defensive asylum to file their completed Form I-589 with the immigration court promptly after being placed in proceedings.

Both applications require proving a well-founded fear of future persecution based on one of the five protected grounds. The standard of proof for asylum is generally lower than for refugee status, requiring the applicant to show that persecution is more likely than not to occur if they return home.

For more detailed guidance on the asylum process, refer to the official USCIS guidance on asylum procedures.