What It Takes to Win Asylum in the U.S.: A Review of Key Legal Provisions

United States federal law describes who can apply for, and who is barred from, the form of humanitarian protection known as asylum.

By , J.D.

United States federal law describes who can apply for, and who is barred from, the form of humanitarian protection known as asylum. The relevant laws are found in the Immigration and Nationality Act (I.N.A.), mainly at I.N.A. § 208. This legal section also refers to the federal law's definition of a refugee (which every intending asylee must meet); specifically, I.N.A. § 101(a)(42)(A).

The U.S. government agency that handles asylum applications is U.S. Citizenship and Immigration Services (USCIS). It is in charge of interpreting the immigration laws (subject to federal court review), issuing regulations that explain its implementation policies, creating the form people use to file for asylum (Form I-589), and reviewing the applications of prospective asylees.

Basic Eligibility for Asylum in the United States

Assuming you don't enjoy reading statutes, here's a summary of who can apply or establish eligibility for asylum in the United States:

  • You'll need to show that you fit the legal definition of a "refugee"—that is, that you are unable or unwilling to return to your home country because of having experienced persecution or having a well-founded fear of future persecution on account of at least one of five grounds: 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 or in some cases even suspected of "particularly serious crimes," including aggravated felonies), security threats, and people who had resettled in another, third country before moving to the United States.
  • 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 asylum.)
  • If you are granted asylum, you can stay in the U.S. and get a work permit; then a year later, apply for lawful permanent residence (a green card). If you are denied asylum, you will (unless you have an independent source of status in the U.S., such as a nonimmigrant visa), be placed into removal proceedings; but can ask the immigration judge to again consider your request for asylum.

Basic Procedural Requirements for Applying for Asylum in the United States

Here are some key things to know about how to apply for asylum, including some procedural hurdles to applying at all:

  • 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 asylum applicants to a "safe third country," under the terms of agreements with other countries. The U.S. has a longstanding agreement of this nature with Canada (although its status is uncertain as of late 2020; a Canadian Federal Court ruled that the U.S. is not a safe country for refugees). The Trump Administration also negotiated safe third-country agreements with Mexico, Guatemala, and El Salvador. Under the terms of these, many asylum seekers will not even be allowed to enter the United States. The Biden Administration has sought to undo these, but thus far been prevented by federal court decisions.
  • If you enter the United States by some means other than claiming asylum, such as with a nonimmigrant visa or on the Visa Waiver Program (VWP), you will 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; although 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; if, for example, the situation in your home country has deteriorated markedly since you first applied.
  • 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.
  • In some situations involving USCIS delays in making a decision on your application, you can get a work permit even before you've been granted asylum.
  • 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."

    Providing Evidence to Support Your Application for Asylum in the United States

    This process involves more than just filling out a form. For example:

    • The asylum applicant has the "burden of proof." That means 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. The decision-maker can factor in 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 whether an 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 to Expect at Your Asylum Interview?

    Definitely don't wait until the last minute to prepare your application. This will take time and research.

      An Attorney Can Help You Win 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. (Statistics show a marked difference in approval rates between applicants with and without legal representation.) 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.

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