Understanding the legal foundation for asylum is essential if you’re trying to start over in the United States after fleeing danger in another country. The laws that govern asylum in the U.S. are rooted in both international obligations and federal statutes.
Those who qualify may be permitted to stay in the United States and eventually apply for lawful permanent residency. As immigration law practitioners in Ohio, we have firsthand experience with how this process unfolds—and how the legal definition of asylum can impact your entire future.
At Herhusky Law Office, PLLC in Raleigh, North Carolina, we’ve guided many individuals and families through the asylum process under United States immigration law. Seeking asylum isn’t about convenience or preference—it’s about safety, survival, and the right to live free from persecution.
Defining Asylum Under U.S. Immigration Law
Under U.S. immigration law, asylum is available to individuals who are physically present in the United States and can demonstrate that they meet the legal definition of a refugee.
This definition requires proof of past persecution or a well-founded fear of future persecution based on specific grounds: race, religion, nationality, political opinion, or membership in a particular social group.
It’s not enough to show that life was difficult or that a person is leaving a country affected by crime or poverty. Asylum hinges on a clear connection between the harm suffered—or feared—and one of those five protected grounds.
This is where immigration law becomes highly detailed, and every piece of evidence can make a difference.
We always emphasize that an asylum application must be rooted in personal experience. The legal argument must explain how an applicant’s identity, beliefs, or affiliations placed them in danger.
That argument must be supported by testimony, documentation, and often country condition reports. If any part of that story is missing or unclear, the application may not succeed.
Persecution and Protected Grounds
Immigration law in the United States doesn’t offer asylum to every person who feels unsafe. Instead, it requires a connection to specific forms of targeted harm. Persecution must be more than harassment or discrimination—it must involve serious threats, violence, imprisonment, or other serious abuse.
In many cases, the persecution comes from a government. In others, it may be inflicted by non-government actors when the government can’t or won’t provide protection.
We’ve worked with individuals who were targeted for political activity, religious beliefs, or ethnicity. In these cases, immigration law provides a path to asylum because the harm suffered relates directly to a protected characteristic.
We’ve also helped clients who were part of marginalized communities that their governments failed to protect. These situations can qualify under the “particular social group” category, which is often the most contested ground.
Establishing membership in a particular social group requires showing that the group is defined, recognizable, and socially distinct.
This might include survivors of domestic violence, LGBTQ+ individuals, or people resisting gang recruitment. Immigration law continues to evolve in this area, and decisions often come down to how well the claim is articulated and supported.
Well-Founded Fear of Future Persecution
Even if an applicant hasn’t been harmed in the past, they may still qualify for asylum if they have a well-founded fear of future persecution. This fear must be credible, and it must relate to one of the five protected grounds. A well-founded fear means the risk is real and not speculative.
We work with clients to build strong future-based claims by gathering country condition reports, news articles, and personal declarations that support their fears.
Immigration law recognizes that people who speak out against corruption, refuse to comply with oppressive religious norms, or belong to politically active groups may be in danger even if they haven’t yet been targeted.
Credibility matters in these cases. In our practice, we help prepare testimony that’s truthful and consistent. Decision-makers in asylum cases are trained to look for contradictions. The more detailed and transparent a person can be, the stronger their claim will stand under the standards of U.S. immigration law.
One-Year Filing Deadline
Immigration law requires that asylum seekers file their applications within one year of entering the United States. There are exceptions to this rule, but they’re narrow and must be clearly justified. Exceptions can be based on changed circumstances or extraordinary circumstances that explain the delay.
We often meet individuals who are unsure when the clock started running or who didn’t realize the one-year deadline applied to them. That’s why early consultation with an immigration law firm is so critical.
If the application is late, we help build a legal argument that falls within one of the allowed exceptions. If there’s no valid reason, the individual may not be eligible for asylum, though other forms of relief might still be available.
Affirmative vs. Defensive Asylum Applications
There are two primary paths for applying for asylum: affirmative and defensive. An affirmative asylum application is filed with U.S. Citizenship and Immigration Services (USCIS) by someone who isn’t in removal proceedings. A defensive application is filed as a defense against removal in immigration court.
While the legal standards are the same in both paths, the procedures and strategies involved can differ significantly. The key differences between affirmative and defensive asylum processes include:
Affirmative asylum is filed with USCIS when the applicant isn’t in removal proceedings
Defensive asylum is requested in immigration court as a response to removal proceedings
Affirmative applicants are interviewed by asylum officers
Defensive applicants appear before immigration judges and face cross-examination
Legal representation is permitted in both processes, but not provided by the government
When we represent clients in affirmative cases, we prepare them for interviews with asylum officers. In defensive cases, we appear before immigration judges and prepare clients for courtroom proceedings. At Herhusky Law Office, PLLC, we stand beside our clients throughout the process, helping them present the strongest case possible.
Bars to Asylum
Certain factors can make someone ineligible for asylum, even if they meet the standard for persecution. Immigration law includes bars that disqualify individuals who have committed serious crimes, pose a threat to national security, or have been firmly resettled in another country before coming to the U.S.
The firm resettlement bar applies when someone had the opportunity to live safely in another country and chose not to. If the government believes a person was offered permanent residence or citizenship elsewhere, their U.S. asylum application could be denied.
We work with clients to explain why previous stays in other countries don’t disqualify them—whether because the protection offered wasn’t genuine or because they weren’t legally permitted to stay.
Criminal convictions are another hurdle. Certain crimes, especially those involving violence or drugs, can block someone from asylum. In those cases, we review the criminal history and prepare legal arguments showing why a particular conviction shouldn’t apply as a bar under immigration law.
Withholding of Removal and Protection Under the Convention Against Torture
For those who don’t qualify for asylum—often due to the one-year filing deadline or certain criminal bars—other forms of protection may still be available. Withholding of removal and protection under the Convention Against Torture (CAT) offer alternatives, but they’re harder to obtain.
Withholding of removal requires a higher standard of proof than asylum. It also doesn’t offer a path to permanent residency or allow for derivative status for family members. Still, for individuals who truly face danger, it may be the only protection available.
CAT protection applies when someone can prove that they’re likely to be tortured if returned to their home country. It’s a narrow form of relief, but it has saved lives.
We analyze every case for potential eligibility under these options. Even when asylum isn’t available, immigration law may still provide a way to stop deportation and protect the individual from harm.
Moving Forward After Asylum Approval
At Herhusky Law Office, PLLC, we help clients not only secure asylum but also plan their future immigration steps. We’re proud to serve Raleigh, Durham, Greensboro, Fayetteville, Charlotte, Wilson, Wilmington, and the greater North Carolina area. Call today to speak with an experienced immigration law attorney.
