Anaya Nolan
Asylum is a protection granted to individuals who can demonstrate that they are unable or unwilling to return to their country of origin due to a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion. The right to seek asylum is protected under international law, including the 1951 United Nations Convention Relating to the Status of Refugees and its 1967 Protocol. In the United States, asylum seekers are granted certain rights and protections under the Constitution, including the right to due process and the opportunity to apply for asylum. While seeking asylum in the US is legal, recent policies have restricted access and created confusion about the process. The right to asylum is also recognized in other countries, such as France, which has a constitutional right to asylum enshrined in its legal framework.
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Asylum seekers' rights
The right to asylum is guaranteed by international and domestic laws. The 1951 United Nations Convention Relating to the Status of Refugees and its 1967 Protocol define a refugee as someone who is unwilling or unable to return to their home country and seek protection there due to past or future persecution based on "race, religion, nationality, membership in a particular social group, or political opinion." This definition was incorporated into U.S. immigration law with the Refugee Act of 1980.
Despite the existence of these laws, the right to seek asylum is under attack. The US, for example, has severely restricted access to asylum at its borders. In 2025, the Trump administration issued a proclamation that indefinitely suspended the right to seek asylum at the southern border, claiming that the administration could block asylum until it determined that an "invasion" of people arriving at the border had ended.
In the European Union, the right to asylum is defined by Article 18 of the Charter of Fundamental Rights. EU countries are parties to the 1951 Geneva Convention and have an international obligation to grant protection to eligible refugees. The EU has also broadened the concept of protection by offering subsidiary protection, which protects individuals from being returned to a country where they face death, torture, or inhumane treatment.
In the United States, asylum seekers have the right to remain in the country while their claim for protection is pending. However, the government has argued that it has the right to detain these individuals. Asylum seekers must apply within one year of arrival and can be denied asylum if they fail to meet this deadline. They must also provide evidence of past persecution or a "well-founded fear" of future persecution in their home country. If granted asylum, individuals are protected from being returned to their home country, are authorized to work, and may apply for a Social Security number and government assistance programs.
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The asylum application process
To apply for asylum through the affirmative asylum process, applicants must be physically present in the United States. They may apply regardless of how they arrived in the country or their current immigration status. Applicants must file Form I-589, Application for Asylum and for Withholding of Removal, with USCIS within 1 year of their last arrival in the country, unless they qualify for an exception. After receiving the completed application, USCIS will send two notices: an acknowledgment of receipt and a notice to visit the nearest application support center (ASC) for fingerprinting. Depending on where the applicant lives, they will then be scheduled for an interview with a USCIS asylum officer, who will determine their eligibility for asylum. If the asylum officer does not grant asylum, the applicant will be referred to an immigration court for removal proceedings, where they may renew their request for asylum through the defensive process.
Defensive asylum occurs when an individual requests asylum as a defense against removal from the United States. This process involves individuals who are in removal proceedings in immigration court with the Executive Office for Immigration Review (EOIR). They may apply for asylum by filing their application with an immigration judge.
In 2022, the Asylum Processing Rule 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.
It is important to note that asylum is a discretionary status, and some individuals may be denied asylum even if they meet the definition of a refugee. Additionally, recent administrations have restricted access to asylum at the border, and asylum seekers face growing barriers in exercising their legal right to seek protection.
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Asylum and deportation
Asylum seekers must be in the US or at a port of entry (an airport or an official land crossing) to request asylum. Seeking asylum is legal under international and US law, and policies enacted by recent US administrations have restricted access to asylum. The right to seek asylum was incorporated into international law following World War II. The United Nations' 1951 Convention Relating to the Status of Refugees and 1967 Protocol Relating to the Status of Refugees define a refugee as someone who is unable or unwilling to return to their home country and cannot obtain protection there due to past persecution or a well-founded fear of future persecution based on race, religion, nationality, membership in a particular social group, or political opinion. This definition was incorporated into US immigration law in the Refugee Act of 1980.
To win asylum in the US, an individual must provide evidence that they have suffered persecution in their home country on one of the protected grounds, or that they have a well-founded fear of future persecution there. An individual's testimony is critical to their asylum determination and can be supplemented by additional evidence. An asylee is protected from being returned to their home country and can work legally in the US. They may also apply for a Social Security number, request permission to travel overseas, and petition to bring family members to the US. After one year, an asylee may apply for lawful permanent resident status (a green card). Once they become a permanent resident, they must wait at least four years to apply for citizenship.
Certain factors bar people from being granted asylum in the US. For example, with limited exceptions, people who fail to apply for asylum within one year of entering the country or who have previously been deported and then re-entered will be barred from receiving asylum. Similarly, applicants who are found to pose a danger to the US, who have committed a serious crime, or who have persecuted others are barred from asylum. If a person is barred from receiving asylum, they may be eligible for more limited forms of protection, such as withholding of removal under the Immigration and Nationality Act or the Convention Against Torture. These forms of protection prohibit the individual from being returned to their home country and give them the right to remain and work in the US. However, they do not provide a path to lawful permanent resident status, and the government can still deport the person to a different country if it is safe to do so and if that country accepts them.
There are two primary ways in which a person may apply for asylum in the US: affirmatively and defensively. A person who is not in removal proceedings may affirmatively apply for asylum through US Citizenship and Immigration Services (USCIS). If a USCIS asylum officer does not grant the asylum application and the applicant does not have lawful immigration status, USCIS refers them to an immigration court for removal proceedings, where they may renew their request for asylum through the defensive process.
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The history of asylum law
Fast forward to the 20th century, and the United Nations' 1951 Convention Relating to the Status of Refugees defined a refugee as a person who is unable or unwilling to return to their home country due to past persecution or a well-founded fear of future persecution based on race, religion, nationality, membership in a particular social group, or political opinion. The United States later incorporated this definition into its legislation.
In 1967, the United Nations High Commissioner for Refugees (UNHCR) Refugee Protocol removed the ""geographical and temporal limits" of the 1951 Convention, allowing it to be used universally. The US signed this protocol in 1968.
In 1977, the US Immigration and Naturalization Service (INS) created a special Office of Refugee and Parole to address global refugee crises and implement refugee policies. Following the Vietnam War and the influx of refugees from Vietnam and Cambodia, Congress passed the Refugee Act of 1980, which provided a uniform and comprehensive policy for refugee admissions, increasing the number of refugees allowed to be admitted annually. This Act also formally adopted the UN's definition of a refugee.
In 1987, responding to growing numbers of asylum seekers, the INS proposed the creation of an "Asylum Corps" of immigration officers, with the policy implemented in 1990. In 1991, seven specialized asylum offices opened across the country.
In 1996, Fauziya Kasinga became the first person to be granted asylum in the US to escape female genital mutilation. In 2001, the September 11 terrorist attacks led to the formation of the Department of Homeland Security (DHS), which reorganized the agencies overseeing immigration. In 2003, a law limited political asylum by introducing the notion of "internal asylum." In 2005, Congress passed the Real ID Act, imposing further limitations on the asylum process by requiring asylum seekers to provide corroborating documents.
In 2014, the Board of Immigration Appeals, the US's highest immigration court, ruled that women facing severe domestic violence in their home countries could be eligible for asylum. However, in 2018, this precedent was reversed, and victims of domestic abuse or gang violence were no longer considered eligible for asylum.
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Asylum and the constitution in specific countries
The right to asylum is recognised by international law, which states that refugees cannot be deported to countries where their "life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion". However, the right to asylum is also shaped by the laws and policies of individual countries.
France
France was the first country to establish a constitutional right to asylum in Article 120 of the Constitution of 1793, for "foreigners banished from their fatherland for the cause of liberty". The modern French right to asylum is secured by the Preamble of the Constitution of 1958, which references the Preamble of the 1946 Constitution. France also adheres to international agreements that provide for application modalities for the right of asylum, such as the 1951 United Nations (UN) Convention Relating to the Status of Refugees (ratified in 1952) and the 1967 protocol.
United States
The United States recognises the right to asylum under international and federal law. Asylum seekers must be in the US or at a port of entry to request asylum. Applicants must prove that they meet the definition of a refugee and are persecuted or fear they will be persecuted due to race, religion, nationality, membership in a particular social group, or political opinion. The US does not enforce a quota for asylum seekers.
China
Paragraph 2 of Article 32 of the Constitution of the People's Republic of China states that China may grant asylum to foreigners who request it for political reasons.
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Frequently asked questions
Noncitizens present within the US have constitutional rights, and asylum is a form of protection for noncitizens. However, asylum is technically a “discretionary" status, meaning that some individuals can be denied asylum even if they meet the definition of a refugee.
Asylum seekers must navigate a difficult and complex process that can involve multiple government agencies. To apply for asylum, a person must be physically present either in the country or at a port of entry. Asylum seekers can request asylum before US Citizenship and Immigration Services (USCIS) or an immigration judge in removal proceedings.
Asylum seekers must demonstrate that they are unable or unwilling to return to their country due to a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion. The burden of proof is on the applicant to establish that they meet the definition of a refugee.
While US law provides arriving asylum seekers the right to remain in the US while their claim is pending, the government has argued that it has the right to detain such individuals. Some courts have rejected this interpretation and held that asylum seekers have a right to a bond hearing, which could result in release from detention.
