Who qualifies for U.S. asylum, and how does the process work?
Asylum and questions about who should be granted humanitarian protection have become focal points of the contentious debate over U.S. immigration policy and how the government should respond to unprecedented levels of migrant arrivals at the southern border.
During the COVID-19 pandemic, asylum processing along the U.S.-Mexico border has been partially suspended because of an emergency measure known as Title 42. But some migrants are being allowed to seek asylum. Other migrants don't seek asylum at all. And not all asylum-seekers enter through the southern border.
While a federal judge has blocked the Biden administration from lifting Title 42 for now, the challenges the U.S. asylum system has faced for years — from a massive backlog of applications and years-long processing times, to inconsistent policies and operational constraints — have continued to intensify.
The Biden administration this week started enforcing a rule it hopes will reform the asylum system and speed up case processing. But the policy will start on a limited scale and its success remains an open question, given operational challenges, the pandemic, record migrant arrests and Republican-led lawsuits.
Here's what you need to know about the U.S. asylum system and the challenges it faces:
Who qualifies for U.S. asylum?
For decades, U.S. law has allowed the government to grant asylum to immigrants who suffered or have a well-founded fear of persecution in their home country because of their nationality, race, religion, political views or membership in a "particular social group."
The persecution must come from government authorities or someone the home country is unable or unwilling to control. Poverty, scarce economic opportunities, displacement caused by natural disasters or a desire to reunite with family are not grounds for asylum under U.S. law.
While it uses the same legal threshold, refugee status is offered to individuals abroad. Asylum, on the other hand, is only available to those on U.S. soil. Barring some exceptions, U.S. law allows migrants in the U.S., including those who entered the country unlawfully, to request asylum as a means to halt their deportation.
How does the asylum process work?
There are two types of asylum cases: "defensive" and "affirmative" requests.
Migrants the government seeks to deport, including those who cross the U.S.-Mexico border illegally, can file defensive asylum applications to try to prevent their deportation. These cases are decided by immigration judges at the Justice Department, which also oversees an appellate immigration court body.
Immigrants with temporary legal status in the U.S., such as short-term visa holders, and unaccompanied children who enter U.S. border custody without their parents, can submit affirmative asylum applications with U.S. Citizenship and Immigration Services (USCIS).
While migrants seeking defensive asylum must make their case in adversarial court hearings that feature judges and government prosecutors, those with affirmative applications are interviewed by USCIS asylum officers.
Applicants whose asylum requests are denied by immigration judges can be ordered deported, though they can appeal those decisions. Asylum-seekers rejected by USCIS are typically placed in deportation proceedings and their cases are transferred to the immigration court system for a final decision.
Immigrants who are granted asylum by an immigration judge or USCIS are allowed to stay in the U.S. permanently and can request a green card one year after the decision. Their children and spouses are also allowed to come to and live in the U.S. legally.
Are people arriving at the U.S.-Mexico border currently allowed to seek asylum?
It depends. For the past two years, U.S. border officials have used the Title 42 public health authority to quickly expel migrants to Mexico or their home country without allowing them to request asylum.
Since the Trump administration invoked Title 42 in March 2020, migrants have been expelled over 1.9 million times from the southern border, Department of Homeland Security (DHS) data show.
However, not all migrants who enter U.S. border custody are expelled under Title 42, which is mainly used on single adults. The Biden administration, for example, has exempted certain groups from Title 42 on humanitarian grounds, including unaccompanied children, Ukrainian refugees and some asylum-seekers.
Other migrants are not expelled because of different reasons, including restrictions imposed by Mexico on who can be expelled there, operational challenges and strained diplomatic relations with countries like Cuba, Nicaragua and Venezuela that restrict or ban U.S. deportations.
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