Cecily Zamora
The United States' asylum laws are currently in a state of flux, with the US government making changes to many immigration laws, while some remain the same. The process of seeking asylum in the US is difficult and complex, with many asylum seekers navigating it without legal representation. Driven by the goal of helping those fleeing persecution, US asylum law has evolved into a mix of statutes, administration policies, and court orders. The Biden Administration has been criticised for its ''asylum ban,', which a federal court found to violate US law, and for executive orders that curb the legal right to seek asylum at the US southern border.
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What You'll Learn
- Immigration judges can deny asylum without a final court hearing
- Asylum seekers are not guaranteed a government-funded lawyer
- The US government is changing many immigration laws
- Asylum seekers must navigate a difficult and complex process
- An asylee may apply for lawful permanent resident status after a year
Immigration judges can deny asylum without a final court hearing
The U.S. asylum process is complex and involves multiple government agencies. There are two primary ways to apply for asylum in the United States: affirmatively and defensively. Affirmative asylum is for those who are not in removal proceedings, while defensive asylum is for those who are already in removal proceedings. In both cases, an asylum application is typically submitted through Form I-589.
In April 2025, the U.S. government announced a change in policy, allowing immigration judges to deny asylum without conducting an individual hearing. This means that if a judge deems an asylum case unlikely to succeed, they can swiftly deny it without the need for a final court hearing. This policy aims to reduce the backlog in immigration courts caused by the high volume of asylum claims. However, it raises concerns about due process and the right to a fair hearing, as some asylum seekers may not have the opportunity to present their case before a judge.
Previously, after receiving an asylum application, the immigration court would schedule an "individual hearing," where the applicant could explain their case in detail. Now, judges can issue deportation orders without these merits hearings. If an immigration judge denies asylum, the applicant has the right to appeal to the Board of Immigration Appeals (BIA) within 30 days. During the appeal process, the applicant cannot be deported.
The U.S. government is making frequent changes to immigration laws, and it is essential for asylum seekers to stay updated and seek legal advice. While some laws are changing, many others remain the same. For those with pending or approved asylum applications, their status remains valid, and they can continue to seek asylum or apply for lawful permanent residence.
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Asylum seekers are not guaranteed a government-funded lawyer
The U.S. government is changing many immigration laws, but many remain the same. Asylum seekers are not guaranteed a government-funded lawyer. The right to counsel is a foundation of the U.S. criminal legal system—if a defendant in criminal court in the U.S. cannot afford a lawyer, the government will appoint them one. However, this right does not extend to immigrants in removal proceedings. Noncitizens subject to removal are generally not entitled to government-funded representation, even though evidence shows that legal representation increases the chance of a positive outcome by a factor of ten.
The Executive Office for Immigration Review (EOIR) does not provide appointed counsel for individuals in immigration court, even if they are unable to retain an attorney on their own. This leaves them exposed to a system designed to trip them up at every step. The IRC is calling for a public defender model, similar to the criminal legal system, in which all noncitizens have access to fundamental legal protections, including high-quality legal representation, in immigration court.
Asylum seekers must navigate a difficult and complex process that can involve multiple government agencies. The process can be lengthy and complex, and asylum seekers should receive certain protections before a state has officially recognized them as refugees. People arriving at the U.S. border have the legal right to request asylum without being criminalized, turned back, or separated from their children. However, the U.S. government has severely restricted access to asylum at the border since 2017. A policy called the Migrant Protection Protocols (MPP) or "Remain in Mexico" forced certain asylum seekers to wait out their U.S. immigration court cases in Mexico with little or no access to legal counsel.
A new policy under the Trump administration urges immigration judges to swiftly deny asylum to migrants whose applications they deem unlikely to succeed. This would circumvent the normal hearing process, which typically takes years to wind through the backlogged courts. The policy took effect on April 11, 2025, and states that judges should consider dropping "legally deficient" asylum cases without holding a hearing. This would keep some people who claim to be fleeing persecution in their home countries from having any opportunity to present their case to a judge.
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The US government is changing many immigration laws
Another change is the ending of the previous extension of Temporary Protected Status (TPS) for Venezuelan immigrants. However, this change was temporarily blocked by a lawsuit filed by immigrants, and TPS for Venezuelans has been extended until October 2, 2026. People with TPS can apply for asylum or other immigration statuses if eligible, but it is a complicated decision that depends on individual circumstances.
The US government has also made changes to the process of obtaining employment-based green cards. The proposed legislation could increase the number of employment-based green cards, eliminate the per-country cap, and allow spouses and children of employment-based visa holders to receive green cards without counting towards the annual cap.
Additionally, the US government has taken steps to preserve the Deferred Action for Childhood Arrivals (DACA) program, which provides temporary legal permission and protection from deportation to unauthorized immigrants who entered the US as children. The DACA expansion and a similar program for parents, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), are currently on hold due to legal challenges.
Furthermore, the Asylum Processing Rule, created in 2022, established a third pathway for asylum seekers, combining elements of affirmative and defensive asylum processes on an expedited timeline. Affirmative Asylum allows individuals not in removal proceedings to apply affirmatively for asylum, while Defensive Asylum allows those in removal proceedings to apply as a defense against removal.
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Asylum seekers must navigate a difficult and complex process
Asylum seekers in the United States must navigate a difficult and complex process that can involve multiple government agencies. This process includes eligibility requirements, the application process, and the interview process.
Firstly, to be eligible for asylum in the US, an individual must have suffered or fear that they will suffer persecution due to their race, religion, nationality, political opinion, or membership in a particular social group. They must also be physically present in the United States and not be a US citizen. In addition, the credible and reasonable fear interview process may be applied differently to different people depending on factors such as when and where they arrived at the border and whether they entered through a port of entry or not.
Secondly, there are two primary ways in which a person may apply for asylum in the United States: affirmatively and defensively. Affirmative asylum refers to a person who is not in removal proceedings and may apply affirmatively through US Citizenship and Immigration Services (USCIS). On the other hand, defensive asylum refers to a person who is in removal proceedings and may apply defensively by filing the application with an immigration judge at the Executive Office for Immigration Review (EOIR). It is important to note that there is no fee to apply for asylum, and applicants may include their spouse and children as dependents on their application.
Lastly, the interview process can be complex and may involve multiple steps. If an individual meets the standard applied to them in the credible or reasonable fear interview, they are then referred to proceedings where they can submit an application for asylum. This is usually done through a referral to an immigration court, where the person is put in removal proceedings. If the USCIS asylum officer does not grant the asylum application, the applicant is referred to the immigration court for removal proceedings, where they may renew their request for asylum through the defensive process.
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An asylee may apply for lawful permanent resident status after a year
The process of seeking asylum in the United States is complex and involves multiple government agencies. An individual can apply for asylum in the US through two primary methods: affirmatively and defensively. Affirmative asylum is for those who are not in removal proceedings, while defensive asylum is for those who are. In both cases, the applicant must file a Form I-589, Application for Asylum and for Withholding of Removal.
Once asylum is granted, an individual is considered an asylee and is protected from being returned to their home country. They are also authorized to work in the US and may apply for a Social Security card. After one year, an asylee may apply for lawful permanent resident status, i.e., a green card, by filing a Form I-485, Application to Register Permanent Residence or Adjust Status. To qualify for a green card, the asylee must be physically present in the US for at least one year since being granted asylum and must not have had their asylum status terminated. They must also be admissible to the US for lawful permanent residence or eligible for a waiver of inadmissibility or other relief.
After becoming a permanent resident, an individual must wait four years to apply for US citizenship. It is important to note that the US government is constantly changing immigration laws, and these requirements may be subject to updates.
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Frequently asked questions
The US government is changing many immigration laws, but many laws remain the same. The asylum process in the US is complex and can involve multiple government agencies.
No, asylum seekers are not guaranteed a government-funded lawyer. However, it is recommended that they seek legal representation as it can improve their chances of being granted asylum.
A person who is not in removal proceedings may affirmatively apply for asylum through US Citizenship and Immigration Services (USCIS). A person who is in removal proceedings may defensively apply for asylum by filing the application with an immigration judge.
The Asylum Processing Rule, issued in 2022, created a third pathway for some individuals arriving from the border, which includes elements of both affirmative and defensive asylum processes, on an expedited timeline.
Asylum seekers must wait at least 180 days for a work permit. If asylum is granted, they qualify to work and can apply for their spouse or children under the age of 21 to join them.
