December 11, 2023

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Asylum in the United States

Each year, thousands of people arriving at our border or already 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. This fact sheet provides an overview of the asylum system in the United States, including how asylum is defined, eligibility requirements, and the application process.

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.”  Congress incorporated this definition into U.S. immigration law in the Refugee Act of 1980.  Asylum is technically a “discretionary” status, meaning that some individuals can be denied asylum even if they meet the definition of a refugee. For those individuals, a backstop form of protection known as “withholding of removal” may be available to protect them from harm if necessary.

As a signatory to the 1967 Protocol, and through U.S. immigration law, the United States has legal obligations to provide protection to those who qualify as refugees. The Refugee Act established two paths to obtain refugee status—either from abroad as a resettled refugee or in the United States as an asylum seeker.

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.

Is There a Deadline for Asylum Applications?

An individual generally must apply for asylum within one year of their most recent arrival in the United States.  In 2018, a federal district court found that  DHS is obligated to notify asylum seekers of this deadline in a class-action lawsuit that challenged the government’s failure to provide asylum seekers adequate notice of the one-year deadline and a uniform procedure for filing timely applications.  

Asylum seekers in the affirmative and defensive processes face many obstacles to meeting the one-year deadline. Some individuals face traumatic repercussions from their time in detention or journeying to the United States and may never know that a deadline exists. Even those who are aware of the deadline encounter systemic barriers, such as lengthy backlogs, that can make it impossible to file their application in a timely manner. In many cases, missing the one-year deadline is the sole reason the government denies an asylum application.  Under the expedited asylum process, a person who passes a credible fear interview is considered to have applied for asylum, which means that the one-year filing deadline is automatically satisfied.

What Happens to Asylum Seekers Arriving at the U.S. Border?

From 2004 through March 2020, DHS subjected most noncitizens who were encountered by, or presented themselves to, a U.S. official at a port of entry or near the border to expedited removal, an accelerated process which authorizes DHS to perform rapid removal of certain individuals.  

To help ensure that the United States does not violate international and domestic laws by returning individuals to countries where their life or liberty may be at risk, the credible fear and reasonable fear screening processes are available to asylum seekers in expedited removal processes. Importantly, while the process described below is how asylum seekers should be processed under law, at times CBP officers do not properly follow this process.

Additionally, under the Trump administration, asylum seekers were subjected to various new asylum policies in 2019 and 2020 which are described in greater detail below. Since March 2020, some asylum seekers also have been expelled under Title 42,  a pandemic-related health policy in which individuals are not permitted to seek asylum.

In some circumstances, if DHS does not have the capacity to hold a person in detention for a credible fear interview, they are instead released directly at the border.  Individuals who are released this way are generally provided a notice to appear in court, where they will have to go through the defensive asylum process, including a requirement to file an asylum application.

Credible Fear

Individuals who are placed in expedited removal proceedings and who tell a Customs and Border Protection (CBP) official that they fear persecution, torture, or returning to their country or that they wish to apply for asylum should be referred for a credible fear screening interview conducted by an asylum officer.

If the asylum officer determines that the asylum seeker has a credible fear of persecution or torture, it means that the person has proven that he or she has a “significant possibility” of establishing eligibility for asylum or other protection under the Convention Against Torture.  What happens next then depends on whether they are placed into the old pre-2022 process or the new post-2022 expedited asylum process, which—as of publication—was only in use on a limited pilot basis.

Those placed in the old process who pass a credible fear interview are referred to immigration court to proceed with the defensive asylum application process. Those placed in the new expedited asylum process who pass a credible fear interview are referred back to USCIS for a separate “asylum merits interview.”  At this interview, which is supposed to occur within 21-45 days of the credible fear interview, the asylum officer will determine whether or not to grant the person asylum. If the person is granted asylum following the asylum merits interview, their process is complete. If the asylum officer determines following the asylum merits interview that a person does not qualify for asylum, they are referred to immigration court to proceed with the defensive asylum application process on a significantly more rapid schedule that is designed to have the court process completed within six months.

If the asylum officer determines the person does not have a credible fear, the individual is ordered removed. Before removal, the individual may appeal the negative credible fear decision by pursuing a truncated review process before an immigration judge.  If the immigration judge overturns a negative credible fear finding, the individual is placed in further removal proceedings through which the individual can seek protection from removal, including asylum.  If the immigration judge upholds the negative finding by the asylum officer, the individual will be removed from the United States.  

  • In Fiscal Year (FY) 2019 (the last full year before the COVID-19 pandemic), USCIS found 75,252 individuals to have credible fear.  These individuals, many of whom were detained during this screening process, will be afforded an opportunity to apply for asylum defensively and establish that they meet the refugee definition.
  • The number of credible fear cases has skyrocketed since the procedure was implemented—in FY 2009, USCIS completed 5,523 cases. Case completions reached an all-time high in FY 2019 at 102,204.  

Reasonable Fear

Individuals who re-enter the United States unlawfully after a prior removal order and noncitizens convicted of certain crimes are subject to a different expedited removal process called reinstatement of removal.   To protect asylum seekers from summary removal before their asylum claim is heard, those in reinstatement of removal proceedings who express a fear of returning to their country are afforded a “reasonable fear” interview with an asylum officer.  

To demonstrate a reasonable fear, the individual must show that there is a “reasonable possibility” that he or she will be tortured in the country of removal or persecuted on the basis of race, religion, nationality, political opinion, or membership in a particular social group.  While both credible and reasonable fear determinations evaluate the likelihood of an individual’s persecution or torture if removed, the reasonable fear standard is higher.

If the asylum officer finds that the person has a reasonable fear of persecution or torture, he or she will be referred to immigration court. The person has the opportunity to prove to an immigration judge that he or she is eligible for “withholding of removal” or “deferral of removal”—protection from future persecution or torture.  While withholding of removal is similar to asylum, some of the requirements are more difficult to meet and the relief it provides is narrower. Significantly, and unlike asylum, it does not provide a pathway to lawful permanent residence or citizenship.

If the asylum officer determines the person does not have a reasonable fear of future persecution or torture, the individual may appeal the negative decision to an immigration judge. If the judge upholds the asylum officer’s negative determination, the individual is turned over to immigration enforcement officers for removal.  However, if the immigration judge overturns the asylum officer’s negative finding, the individual is placed in removal proceedings through which the individual can pursue protection from removal.  

Changes to the Asylum Process at the Border during the Trump administration and afterwards

In April 2018, the Trump administration issued guidance formalizing a prior policy of turning away asylum seekers at the U.S. border. Under “metering,” asylum seekers are told to wait in Mexico, usually placing their names on a list, until CBP officers determine that a given port of entry has capacity to process them.  Through metering, asylum seekers were prevented from accessing the asylum process when they arrive at the U.S. border. In November 2021, the Biden administration formally rescinded this guidance and instructed ports of entry to expand asylum processing.  However, due to pandemic-related restrictions at ports of entry, this new guidance has not fully gone into effect at time of publication.

In January 2019, DHS began implementing a series of new programs that significantly altered the traditional credible and reasonable fear processes. Most of these programs, including so-called “asylum cooperative agreements” and rapid credible fear adjudication processes known as PACR and HARP,  were suspended in March 2020 due to the COVID-19 pandemic, and were later formally revoked by the Biden administration.

The most prominent of these programs, known as the Migrant Protection Protocols (MPP) or Remain in Mexico, forced asylum seekers to be sent back to Mexico, where they were required to wait for the date of their immigration court hearings held at four different U.S. locations across the border. Individuals put through MPP did not go through the credible fear or reasonable fear screening process, but instead were put directly into court proceedings which allow U.S. officials to send them back to Mexico to await their subsequent court hearings.  MPP was originally struck down by the Ninth Circuit as a violation of law, but that  decision was put on hold by the Supreme Court.  Roughly 68,000-70,000 people were put into MPP through January 2021,  when President Biden took office and suspended the practice.

In June 2021, the Biden administration formally terminated MPP. However, in August 2021, a federal court in Texas ruled that this termination was improper and ordered the administration to resume MPP. In December 2021, the Biden administration reached an agreement with Mexico to resume the program, although in a significantly more limited fashion than the original program. The lower court’s order was eventually overturned by the Supreme Court in June 2022, allowing the Biden administration to terminate MPP a second time. Over 6,000 people were returned to Mexico under the renewed MPP 2.0.  Litigation over the Biden administration’s second attempt to end the program remains ongoing at the time of publication.

Changes to the Asylum Process due to COVID-19

In March 2020, in response to the COVID-19 (coronavirus) pandemic, the Centers for Disease Control issued an order suspending the “introduction” of persons who have been in “Coronavirus Impacted Areas.”  Citing this authority, the Border Patrol began “expelling” individuals who arrive at the U.S.-Mexico border without giving them the opportunity to seek asylum, even if they express a fear of persecution.  That order was later extended indefinitely.   Additionally, in response to the pandemic, all MPP hearings at the border were suspended  until January 2022, when hearings resumed following a court order. Since Title 42 went into effect in March 2020, CBP agents have carried out over 2.2 million expulsions.

Expulsions under Title 42 are carried out under public health authority and do not involve immigration law, including asylum law. That means that individuals who are expelled under Title 42 are generally not permitted to ask for asylum, although there are some exceptions. For example, due to a federal class action lawsuit which went into effect in spring 2022, individuals who arrive as members of a family group and who express a fear of persecution in the country to which they would be expelled are generally permitted to seek asylum.

Since March 2020, over 230,000 people arriving in a family group, primarily from Guatemala, Honduras, and El Salvador, have been expelled under Title 42.  Tens of thousands of other asylum seekers who arrived as single adults have also been expelled, with over 10,000 Haitians alone having been expelled back to Haiti.  Asylum seekers have also largely been blocked from seeking asylum at ports of entry thanks to Title 42, which has forced many to cross between ports of entry instead rather than wait indefinitely in dangerous conditions in Mexico.

Due to logistical and diplomatic reasons inherent to Title 42, most asylum seekers from countries other than Mexico, Guatemala, Honduras, and El Salvador cannot be expelled, and have been permitted to seek asylum in the United States through the defensive or expedited asylum processes.

How Long Does the Asylum Process Take?

Overall, the asylum process can take years to conclude. In some cases, a person may file his or her application or pass a credible or reasonable fear screening and receive a hearing or interview date years in the future. Backlogs, which were already long before the pandemic, have only grown longer since then due to COVID restrictions and months or years-long closures in some courts and asylum offices.

  • As of April 1, 2022, there were 470,786 affirmative asylum applications pending with USCIS. The government does not estimate the time it will take to schedule an initial interview for these asylum applicants, though historically the delay could reach four years.  
  • The backlog in U.S. immigration courts continues every month to reach all-time highs, with over 1.82 million open removal cases as of June 2022.  Through November 2021, asylum applications had been filed in over 671,000 removal cases, with the average case pending for over four years.
  • Individuals with an immigration court case who were ultimately granted relief—such as asylum—by May 2022 had waited more than 1,508 days on average for that outcome. Illinois had the longest wait times, averaging over 2,000 days until relief was granted in the immigration case.

Asylum seekers, and any family members waiting to join them, are left in limbo while their case is pending. The backlogs and delays can cause prolonged separation of refugee families, leave family members abroad in dangerous situations, and make it more difficult to retain pro bono counsel who are able to commit to legal services for an extended period of time for the duration of the asylum seeker’s case.  

Although asylum seekers may apply for work authorization after their case has been pending for 150 days (or longer in some circumstances),  the uncertainty of their future impedes employment, education, and trauma recovery opportunities.  

What Happens to Asylum Seekers While Their Application Is Processed?

Asylum seekers include some of the most vulnerable members of society—children, single mothers, victims of domestic violence or torture, and other individuals who have suffered persecution and trauma. While U.S. law provides arriving asylum seekers the right to remain in the United States while their claim for protection is pending, the government has argued that it has the right to detain such individuals, rather than release them into the community.  Some courts have rejected this interpretation and held that asylum seekers meeting certain criteria have a right to a bond hearing.  Advocates have challenged the practice of detaining asylum applicants without providing a meaningful opportunity to seek parole, including class-action suits that document the prolonged detention—sometimes lasting years—of individuals with credible fear awaiting adjudication of their claim for asylum.

Detention exacerbates the challenges asylum seekers already face and can negatively impact a person’s asylum application. Studies have found that detained individuals in removal proceedings are nearly five times less likely to secure legal counsel than those not in detention.  This disparity can significantly affect an individual’s case, as those with representation are more likely to apply for protection in the first place and successfully obtain the relief sought.  

How Many People Are Granted Asylum?

In FY 2019, the most recent pre-pandemic year with available data, 46,508 individuals were granted asylum: 27,643 affirmatively and 18,865 defensively (Figure 1).  Due to the closure of asylum offices and suspension of most court hearings in the middle of FY 2020 because of the pandemic, asylum grants that year fell to 31,429. Total annual asylum grants averaged 28,264 between FY 2000 and FY 2020.

The countries of nationality for individuals granted asylum have largely remained the same in this 10-year period (FY 2000-2020), with nationals of China and Egypt making up significant shares of asylees.  Other individuals granted asylum in that time period included nationals of Guatemala, Haiti, Venezuela, Iraq, Ethiopia, Iran, Colombia, and Russia.  

In FY 2019 (the last pre-pandemic year), Chinese and Venezuelan nationals represented the greatest shares of asylees (accounting for 16.2 percent and 14.5 percent, respectively, of all individuals granted asylum that year.  Nationals of China, Venezuela, El Salvador, Guatemala, and Egypt combined accounted for nearly half (48.1 percent) of the 46,130 individuals granted asylum—either affirmatively or defensively—in FY 2019 (Figure 2). More than 110 nationalities were represented among all individuals granted asylum in FY 2019.