Asylum

Each year, thousands of people arriving at the border in the United States apply for asylum, a form of protection from persecution. Asylum seekers must navigate a difficult and complex process that can involve multiple government agencies. Those granted asylum can apply to live in the United States permanently and gain a path to citizenship and can also apply for their spouse and children to join them in the United States.

What Is Asylum?

Asylum is a protection grantable to foreign nationals already in the United States or arriving at the border who meet the international law definition of a “refugee.” The United Nations 1951 Convention and 1967 Protocol define a refugee as a person who is unable or unwilling to return to his or her home country, and cannot obtain protection in that country, due to past persecution or a well-founded fear of being persecuted in the future “on account of race, religion, nationality, membership in a particular social group, or political opinion”

How Does Asylum Help People Fleeing Persecution?

An asylee—or a person granted asylum—is protected from being returned to his or her home country, is authorized to work in the United States, may apply for a Social Security card, may request permission to travel overseas, and can petition to bring family members to the United States.  Asylees may also be eligible for certain government programs, such as Medicaid or Refugee Medical Assistance.  

After one year, an asylee may apply for lawful permanent resident status (i.e., a green card).  Once the individual becomes a permanent resident, he or she must wait four years to apply for citizenship.  

What Is the Asylum Application Process?

There are three primary ways in which a person may apply for asylum in the United States: the affirmative process, the defensive process, and the expedited process.

• Affirmative Asylum:A person who is not in removal proceedings (or a person who has been designated as an “unaccompanied child,” even if in removal proceedings) may affirmatively apply for asylum through U.S. Citizenship and Immigration Services (USCIS), a division of the Department of Homeland Security (DHS). If the USCIS asylum officer does not grant the asylum application and the applicant does not have a lawful immigration status, he or she is referred to the immigration court for removal proceedings, where he or she may renew the request for asylum through the defensive process and appear before an immigration judge.  
• Defensive Asylum:A person who is in removal proceedings may apply for asylum defensively by filing the application with an immigration judge at the Executive Office for Immigration Review (EOIR) in the Department of Justice. In other words, asylum is applied for as a defense against removal from the U.S. Unlike the criminal court system, EOIR does not provide appointed counsel for individuals in immigration court, even if they are unable to retain an attorney on their own.
• Expedited Asylum: A person taken into custody within 14 days of entering the United States who is placed into “expedited removal” proceedings may be put through a new process begun in 2022 which allows a USCIS asylum officer to review and adjudicate their asylum claim before they are placed into formal removal proceedings.  Individuals put through this process who are denied asylum are referred to the immigration court for removal proceedings and further expedited hearings on their asylum application.

Asylum seekers who arrive at a U.S. port of entry or enter the United States without inspection generally must apply through the defensive or expedited asylum processes. All three application processes require the asylum seeker to be physically present in the United States or at a port of entry.

With or without counsel, an asylum seeker has the burden of proving that he or she meets the definition of a refugee. In order to be granted asylum, an individual is required to provide evidence demonstrating either that they have suffered persecution on account of a protected ground in the past, and/or that they have a “well-founded fear” of future persecution in their home country.  An individual’s own testimony is usually critical to his or her asylum determination.

Certain factors bar individuals from asylum. For example, with limited exceptions, individuals who fail to apply for asylum within one year of entering the United States will be barred from receiving asylum. Similarly, applicants who are found to pose a danger to the United States, who have committed a “particularly serious crime,” or who persecuted others themselves, are barred from asylum.