Every year, thousands of people come to the United States in need of protection because they have been persecuted or fear that they will be persecuted on account of their race, religion, nationality, membership in a particular social group, or political opinion. Those found eligible for asylum are permitted to remain in the United States.

Unlike the U.S. Refugee Program, which provides protection to refugees by bringing them to the United States for resettlement, the U.S. Asylum Program provides protection to qualified refugees who are already in the United States or are seeking entry into the United States at a port of entry. Asylum-seekers may apply for asylum in the United States regardless of their countries of origin. There are no quotas on the number of individuals who may be granted asylum each year (with the exception of individuals whose claims are based solely on persecution for resistance to coercive population control measures).

An applicant must be a refugee in order to be eligible for asylum. The definition of a refugee is found in INA § 101(a)(42)(A) and requires that the applicant be:

• unable or unwilling to return to or avail himself or herself of the protection of the country of his or her nationality or, if stateless, the country where he or she last habitually resided
• because of persecution or a well-founded fear of persecution
• on account of race, religion, nationality, membership in a particular social group, or political opinion

Under INA § 101(a)(42)(B) an applicant who establishes past persecution or a well-founded fear of persecution on account of resistance to a coercive population control (CPC) program is considered to have established persecution on account of political opinion. These include, but are not limited to, applicants who were forced to abort a pregnancy or undergo involuntary sterilization, or those who failed or refused to undergo these procedures.

Common Bars to Applying for Asylum

An asylum-seeker is ineligible to apply for asylum under of the INA 208(a)(2) if he or she:

• Failed to file an asylum application (Form I-589) within one year of his or her last arrival in the United States or April 1, 1997, whichever is later;
  • Exception to the I-Year Filing Deadline: The applicant demonstrates either the existence of changed circumstances* which materially affect the applicant’s eligibility for asylum or extraordinary circumstances** relating to the delay in filing. The applicant needs to have filed the application within a reasonable time given the exception.
• Previously applied for asylum and was denied by an Immigration Judge or the Board of Immigration Appeals
  • Exception to Previous Denials of Asylum: The applicant establishes the existence of changed circumstances* which materially affect his or her eligibility for asylum.
• Can be removed to a safe third country pursuant to a bilateral or multilateral agreement
  • USCIS published regulations implementing a bilateral agreement between the United States and Canada on November 29, 2004. Unless asylum-seekers arriving at a U.S./Canada land border port of entry or transiting through the United States while being removed from Canada fall within an exception to the agreement, they will be returned to Canada to seek protection there.

*Changed Circumstances may include but are not limited to the following: changes in conditions in the applicant’s country of nationality or, if the applicant is stateless, country of last habitual residence; changes in the applicant’s circumstances that materially affect the applicant’s eligibility for asylum, including changes in applicable U.S. law and activities the applicant becomes involved in outside the country of feared persecution that place the applicant at risk; or in the case of an alien who had previously been included as a dependent in another alien’s pending asylum application, the loss of the spousal or parent-child relationship to the principal applicant through marriage, divorce, death, or attainment of age 21.

**Extraordinary Circumstances may include but are not limited to the following: serious illness or mental or physical disability, including any effects of persecution or violent harm suffered in the past, during the 1-year period after arrival; legal disability (e.g., the applicant was an unaccompanied minor or suffered from a mental impairment) during the 1-year period after arrival; ineffective assistance of counsel; the applicant maintained Temporary Protected Status, lawful immigrant or nonimmigrant status, or was given parole, until a reasonable period before the filing of the asylum application; the applicant filed an asylum application prior to the expiration of the 1-year deadline, but that application was rejected by the Service as not properly filed, was returned to the applicant for corrections, and was re-filed within a reasonable period thereafter; or the death or serious illness or incapacity of the applicant’s legal representative or a member of the applicant’s immediate family.