Cameron Miranda
The United States has a long history of offering asylum to those seeking protection from persecution in their home countries. While seeking asylum is legal under international and U.S. law, recent policies have restricted access to asylum, particularly at the U.S.-Mexico border. To be granted asylum in the U.S., individuals must meet the definition of a refugee and demonstrate past persecution or a well-founded fear of future persecution on the basis of race, religion, nationality, membership in a particular social group, or political opinion. The process of seeking asylum can be complex, and individuals may face various bars to obtaining asylum, such as the one-year filing deadline. Despite these challenges, asylum seekers continue to undertake dangerous journeys to seek safety in the United States, fleeing humanitarian crises and persecution from all over the world.
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What You'll Learn
Who qualifies as a refugee?
The United Nations' 1951 Convention Relating to the Status of Refugees and 1967 Protocol Relating to the Status of Refugees define a refugee as a person who is unable or unwilling to return to their home country and cannot obtain protection in that 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. This definition was incorporated into U.S. immigration law with the Refugee Act of 1980.
In the United States, a refugee is someone who is located outside of the country and is of special humanitarian concern to the U.S. To be granted refugee status, individuals must provide evidence of past persecution or a well-founded fear of future persecution in their home country based on protected grounds. An individual's own testimony is critical to their asylum determination and can be supported by additional evidence.
LGBTQ+ individuals, for example, may seek asylum in the U.S. based on their membership in a particular social group. In 1994, Attorney General Janet Reno set a precedent by finding that a gay Cuban man was eligible for withholding of removal based on his membership in the PSG of homosexuals. This case established that a well-founded fear of persecution due to one's sexual orientation is a valid basis for claiming asylum in the U.S.
It is important to note that asylum is a discretionary status in the U.S., meaning that even if an individual meets the definition of a refugee, they may still be denied asylum. Additionally, there are bars to receiving asylum, such as the one-year filing deadline, persecution of others, committing serious crimes, or posing a risk to U.S. security. If an individual is barred from receiving asylum, they may still be eligible for more limited forms of protection, such as withholding of removal or relief under the Convention Against Torture.
Those granted asylum in the U.S., known as asylees, are protected from being returned to their home country and are authorized to work, apply for a Social Security number, and request permission to travel overseas. Asylees may also petition to bring family members to the U.S. and may be eligible for certain government assistance programs.
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Asylum seekers' rights
The rights of asylum seekers in the United States have been a contentious issue in recent years, with the US government severely restricting access to asylum at the border. Despite this, asylum seekers do have certain rights under US and international law.
Firstly, asylum seekers have the legal right to request asylum at the US border without being criminalized, turned back, or separated from their children. This right is enshrined in international law, specifically the 1951 United Nations Convention Relating to the Status of Refugees and its 1967 Protocol, which defines 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, social group, or political opinion. The US incorporated this definition into its immigration law with the Refugee Act of 1980.
To be granted asylum, an individual must provide evidence of past persecution or a well-founded fear of future persecution in their home country. Their own testimony is critical to this determination and can be supplemented by additional evidence. If an asylum seeker is recognized as a refugee, they are protected from being returned to their home country and can apply for a work permit, a Social Security number, permission to travel overseas, and the ability to bring family members to the US. They may also be eligible for certain government programs like Medicaid.
However, there are restrictions to these rights. Asylum seekers generally have no right to economic support and may face a period of ineligibility for work, which has been condemned by organizations like Human Rights Watch. There is also a one-year deadline for submitting an asylum application, with certain exceptions, and bars to receiving asylum if the applicant persecuted others, committed serious crimes, or poses a security risk. If barred from asylum, individuals may still seek more limited forms of protection, such as withholding of removal, which does not provide a path to lawful permanent residency.
In recent years, the US government has implemented policies like expedited removal, where DHS officers can issue removal orders without a hearing, and Proclamation 10888, issued by President Trump in 2025, which indefinitely suspended the right to seek asylum at the southern border. These policies have been challenged legally and by organizations like the IRC, which provides legal assistance and other services to asylum seekers.
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Application process
To apply for asylum in the United States, an individual must be physically present in the country or at a designated port of arrival. Asylum seekers are not required to be at an official border crossing, but they must meet the international law definition of a "refugee".
The United Nations' 1951 Convention Relating to the Status of Refugees and 1967 Protocol Relating to the Status of Refugees define a refugee as a person who is unable or unwilling to return to their 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".
To win asylum, an individual is required to provide evidence demonstrating either that they have suffered persecution in their home country 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 their asylum determination and can be supplemented by additional evidence if available.
There are two primary ways in which a person may apply for asylum in the United States: affirmatively and defensively. In 2022, a regulation 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.
In the affirmative asylum or defensive asylum processes, applicants must complete a Form I-589, Application for Asylum and for Withholding of Removal. Applicants must also bring an interpreter to their asylum interview if they are not fluent in English or wish to have their interview conducted in a language other than English.
If an asylum seeker is recognised as a refugee, they may apply for lawful permanent residence status (a green card) one year after being granted asylum. Asylum seekers generally do not receive economic support, and they are ineligible for a work permit for 365 days after their application.
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Grounds for refusal
Asylum seekers in the United States may be refused asylum on several grounds. Firstly, they must be physically present in the US or at a port of entry, such as an official land crossing or airport. Seeking asylum at the border has become increasingly challenging due to recent policies and restrictions.
Secondly, asylum seekers must meet the legal definition of a refugee, as outlined in the 1951 United Nations Convention Relating to the Status of Refugees and its 1967 Protocol. This definition, incorporated into US law through the Refugee Act of 1980, states that a refugee is an individual 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.
Thirdly, even if an individual meets the definition of a refugee, asylum is a discretionary status, and they may still be denied asylum in the US. For example, the US government has the authority to waive certain regulatory requirements and expedite the removal of asylum seekers without a hearing before an immigration judge if they lack proper entry documents or are deemed to pose a security risk.
Additionally, the US government has implemented policies, such as Title 42, which allow for the expulsion of asylum seekers without legal process, particularly during the COVID-19 pandemic. Title 42 presumes that migrants are ineligible for asylum if they did not arrive at a legal port of entry or if they passed through other countries first without seeking asylum. This has been criticized by human rights groups as a violation of international and domestic laws.
Furthermore, the US President has some discretion in asylum matters. For example, President Trump issued Proclamation 10888, which indefinitely suspended the right to seek asylum at the southern border, declaring arriving migrants as an "invasion." This proclamation was challenged in court, with judges ruling that it exceeded the President's authority and violated US laws and international treaties.
In summary, while seeking asylum is legal under international and US law, various grounds for refusal exist, including physical presence requirements, failure to meet the refugee definition, discretionary denials, expedited removal policies, public health considerations, and executive actions. These grounds have been subject to ongoing legal and political debates, with human rights organizations advocating for the protection of asylum seekers' rights.
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Recent developments
Seeking asylum is legal under international and US law. However, 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.
In the US, asylum is a protection granted to foreign nationals who are already in the country or arriving at the border and meet the international law definition of a "refugee". Refugees are defined as people who are 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.
To win asylum, individuals must provide evidence of past persecution or a well-founded fear of future persecution in their home country. Their own testimony is critical to their asylum determination and can be supplemented by additional evidence. If granted asylum, individuals are protected from being returned to their home country, authorized to work in the US, and may apply for a Social Security number and government programs such as Medicaid.
There have been significant changes in how asylum seekers are treated at the US-Mexico border in recent years. The Department of Homeland Security (DHS) has subjected tens of thousands of people to expedited removal, authorizing officers to issue removal orders without a hearing before an immigration judge. On January 20, 2025, President Trump issued Proclamation 10888, indefinitely suspending the right to seek asylum at the southern border, declaring arriving individuals an "invasion". This proclamation has been legally challenged as ignoring protections put in place by Congress to ensure asylum claims are heard.
In terms of recent developments, in August 2014, the Board of Immigration Appeals, the US's highest immigration court, ruled that women who are victims of severe domestic violence in their home countries can be eligible for asylum. However, in June 2018, Attorney General Jeff Sessions reversed this precedent, announcing that victims of domestic abuse or gang violence would no longer qualify for asylum. This ruling has been criticized by organizations such as Human Rights Watch, which has condemned the US for not providing economic support to asylum seekers and imposing long waits for permanent resident status.
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Frequently asked questions
A refugee is defined as "any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such a person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country 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."
Asylum seekers must be in the U.S. or at a port of entry (an airport or an official land crossing) to request the opportunity to apply for asylum. They must also show that they suffered persecution in the past, or have a well-founded fear of future persecution in their country of nationality.
Asylees are protected from being returned to their home country, are authorized to work in the United States, may apply for a Social Security number, 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.
The Trump administration severely restricted access to asylum at the border. On January 20, 2025, President Trump issued Proclamation 10888, which indefinitely suspends the right to seek asylum at the southern border. The order claims that people arriving at the border are an "invasion" and that the administration can block asylum until the "invasion" has ended. Trump also implemented a zero-tolerance policy to increase prosecutions of undocumented migrants and deferred asylum applications, a tactic known as metering.
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