The relevant laws governing asylum in the United States are federal,
and are found in the Immigration and Nationality Act (I.N.A.). The most
important section is I.N.A. Section 208,
which describes who can apply for, and who is barred from, applying for
asylum. This Section also refers to the section defining a refugee
(which definition every intending asylee must meet); specifically, I.N.A. Section 101(a)(42)(A).
The government agency that handles asylum applications is U.S.
Citizenship and Immigration Services (USCIS). It is in charge of
interpreting these laws (subject to federal court review), issuing
regulations that explain its implementation policies, creating the form
that people use to file for asylum (Form I-589), and reviewing the
applications of prospective asylees.
Important Points to Notice in the Asylum Laws
For those who don't enjoy reading statutes, here are some of the key
takeaway points from the law on asylum, in plain English and with
- You have to be in the U.S. to apply for asylum. (People fleeing
persecution can apply for U.S. help from overseas, but they need to
follow the procedures for applying to be a "refugee," not an "asylee.")
- The U.S. may remove you to a "safe third country," under the terms
of agreements with other countries. (This should not concern you much;
the U.S. has such an agreement only with Canada, and does not use this
clause in cases of people who chose on their own to apply for asylum, as
opposed to waiting until they were in removal proceedings to apply.)
- You have one year from entering the U.S. to file for asylum.
(However, USCIS policy has been to not start counting the days until a
person's visa runs out.) If you have missed the one-year deadline, see
an attorney; exceptions can be made if the delay was for reasons of
changed conditions in your home country or life circumstances.
Unaccompanied children are not subject to the deadline.
- You have only one chance at applying for asylum. If you have applied
before and been denied, that's it -- though you can file appeals of the
denial, all the way to the Supreme Court if you have the time and money
to do so. But after a final denial, you cannot try all over again. An
exception can be made if you can show changed circumstances relevant to
your case -- for example, if the situation in your home country has
deteriorated markedly since you first applied.
- The applicant has the "burden of proof." In other words, you can't
just apply for asylum and wait for the U.S. government to dig up reasons
why it should or shouldn't be granted. It's your job to convince the
U.S. government that you deserve asylum. Your testimony alone can be
enough for this, under the law. (But don't use that as an excuse to not
put energy into finding supporting documents, witness testimony, and
anything else that will back up your claim.)
- The officer or judge who meets you in person to hear and decide your
case can base a decision partly on your (and your witnesses')
"credibility" -- that is, whether or not you appear to be telling the
truth. He or she can base the decision on your credibility on a number
of factors, such as your demeanor,
candor, or responsiveness; the inherent
plausibility and consistency of your account, the consistency
between your written and oral statements and any outside evidence of
record; and any inaccuracies or
falsehoods in such statements. Here's a phrase that can be worrying: the
officer or judge can also consider these factors "without regard to
inconsistency, inaccuracy, or falsehood goes to the heart of the
applicant's claim." In other words, a seemingly minor mistake -- such as
if you claim to have been wearing a striped suit when you were beaten
and a photo shows you wearing a polka dotted shirt -- could, in theory,
ruin your credibility. (But a truly minor mistake that anyone could make
can be overlooked if outweighed by other solid evidence and testimony.) - See "What Will Happen at Your Asylum Interview?"
- Your job is to show that you are a "refugee" -- that is, that you are unable or
unwilling to return to your home country because of persecution or a
well-founded fear of persecution on account of either your race, religion,
nationality, membership in a particular social group, or political
opinion, or because you have either been forced to abort a pregnancy or to undergo involuntary
sterilization, been persecuted for failure or refusal to
undergo such a procedure or for other resistance to a coercive
population control program, or have
a well founded fear that you will be forced to undergo such a
procedure or be subject to persecution for such failure, refusal, or
resistance. (The latter section about population control is mostly aimed at people from Mainland China.)
- Various "exceptions" are listed in the law, meaning people who are
barred from receiving asylum in the United States. These include
persecutors of others, criminals (convicted of "particularly serious
crimes," including aggravated felonies), security threats, and people
who had resettled in another, third country before moving to the United
- The primary applicant's spouse or children (unmarried, under 21) can
be granted asylum at the same time, even if they don't separately
qualify for asylum. (Or, they can submit their own applications for
- If you are granted asylum, you can stay in the U.S. and get a work
permit. If you are denied, you will (unless you have an independent
source of status in the U.S., such as a nonimmigrant visa), be removed.
- In affirmative cases (where you file on your own, not in removal
proceedings), there are deadlines on USCIS. It must hold the initial
interview or hearing on your application within 45 days of its filing;
and make a final
administrative decision (potentially within the immigration court)
within 180 days after the
date your application was filed.
- If you file
a frivolous application for asylum (for example, you make up a story),
you will be permanently
ineligible for any immigration benefits -- regardless of whether you
marry a U.S. citizen, get a job offer from a U.S. employer, and so
forth. The answer to any such applications would be no.
Winning an Asylum Case
Given the complexity of the laws on asylum, your best bets for
success are to fully understand the eligibility rules, prepare extensive
documentation (including a personal statement), and review the
materials so that your interview or court hearing will go smoothly, and
you won't trip up over easily forgotten facts or dates. A lawyer's help
can be enormously useful in all this. If you can't afford to hire one,
contact local immigrants' rights and social service organizations, who
may be able to help you "pro bono" (for free) or at a reduced rate.
For details on the asylum application process, see "How to Get Asylum In The U.S."