What It Takes to Win Asylum in the U.S.

A plain-English explanation of the U.S. immigration laws concerning asylum and what you'll need to do to win a case.

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 explanatory comments:

  • 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 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 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 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. 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."

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