What Is Asylum?

Asylum is a form of protection granted to foreign nationals already in the United States or arriving at the border. To qualify, they must meet the international law definition of a ‘refugee.’ According to the United Nations 1951 Convention and the 1967 Protocol, a refugee is someone who cannot or will not return to their home country due to past persecution or a well-founded fear of future persecution based on factors such as race, religion, nationality, membership in a particular social group, or political opinion. The U.S. incorporated this definition into its immigration law through the Refugee Act of 1980. Asylum status is technically ‘discretionary,’ meaning that even if an individual meets the refugee definition, they may still be denied asylum. In such cases, an alternative form of protection called ‘withholding of removal’ may be available to safeguard them from harm.

The United States, as a signatory to the 1967 Protocol, has legal obligations to protect those who qualify as refugees. The Refugee Act provides two paths to obtain refugee status: either from abroad as a resettled refugee or within the United States as an asylum seeker

Affirmative Asylum

When a noncitizen applies for asylum before they are in removal proceedings

Defensive Asylum

When a non-citizen is already in removal proceedings when they apply for asylum.

Asylum Processing Rule

Since May 31, 2022, certain individuals entering the United States undergo processing based on an interim final rule. Initially, they are placed in expedited removal. If they express fear of persecution or torture, they receive a credible fear interview, which initiates a defensive asylum claim. Instead of directly sending their case to an immigration judge, individuals processed under this rule are referred to an asylum officer for a non-adversarial Asylum Merits Interview within 21-45 days after the credible fear determination. This interview resembles an affirmative asylum claim. The asylum officer can either grant or deny asylum. If denied, the case proceeds to an immigration judge. Additionally, a person denied asylum by an asylum officer is also evaluated for eligibility for withholding of removal and protection under the Convention Against Torture—a key aspect of defensive asylum procedures.

ONE-YEAR FILING DEADLINE

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.

PROVING ASYLUM

For asylum applicants, INA § 208 (b)(1)(B)(ii) specifies, “The testimony of the applicant may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee.”

Demeanor and Credibility

The INA directs that an IJ in assessing credibility should consider the “totality of the circumstances” and “all relevant factors,” including:

the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’s account, the consistency between the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor.

The REAL ID Act states for asylum applicants that a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’s account, the consistency between the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record. See INA § 208(b)(1)(B)(iii).

INA § 240(c)(4)(C). See also Matter of J-Y-C-, 24 I&N Dec. 260, 266 (BIA 2007) (holding that the IJ properly considered the totality of the circumstances in finding that the applicant lacked credibility based on his demeanor, implausible testimony, lack of corroboration, and inconsistent statements).

Respondent Has Burden to Explain Inconsistencies

In Matter of Y-I-M-, 28 27 I&N Dec. 724, 725 (BIA 2019), the BIA held that “if inconsistencies in the record are obvious or have previously been identified” by DHS or the IJ, the IJ is not required to give the respondent a specific opportunity to explain them.