Basics of Asylum

When a foreign national in the United States is afraid to go back to their home country, they may be able to ask the U.S. government for asylum. To be granted asylum in the United States, an asylum seeker must show that they meet the definition of "refugee" under U.S. immigration law:

The term refugee means (A) 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 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...  INA § 101(a)(42)

  • Barriers to Asylum

    While the definition of "refugee" may appear straightforward, asylum law is exceedingly complex and a grant of asylum is difficult to achieve. There are many legal elements to asylum, and not all persecution that people have suffered or fear will qualify them for asylum. Because the persecution suffered or feared must be "on account of" race, religion, nationality, political opinion or membership in a particular social group, merely fleeing civil war, without additional qualifying factors, is not a basis for asylum. Additionally, "persecution" does not include mere discrimination, harassment, or mandatory military service, unless additional qualifying factors are present.

    There are many legal "bars" to asylum that preclude a persecuted individual from receiving asylum, the most widely known being the "one-year bar." In most circumstances, an asylum seeker must apply for asylum within one year of their last entry into the United States. While some limited exceptions to this rule exist, they are discretionary with the U.S. government and can be hard to obtain. Asylum seekers should seek legal advice from a qualified asylum lawyer prior to applying for asylum. If an asylum seeker is barred from receiving asylum, other forms of relief exist under federal law that protect individuals who fear returning home, and should be explored.

  • The Path to Asylum

    An asylum seeker may generally request asylum from the U.S. government in one of two ways:

    1. If the individual is currently present in the United States, either lawfully or unlawfully, and is not already in removal (deportation) proceedings, they may file an "affirmative" asylum application with US Citizenship and Immigration Services (USCIS).
    2. If the individual is already in removal proceedings in immigration court, or presents themselves at the border or a port of entry without proper entry documents, they may file a "defensive" asylum application with the immigration court as a defense to removal in deportation proceedings.

    Special rules apply to asylum claims for unaccompanied children.

    Asylum-seeking individuals held in immigration detention centers receive either a "credible fear interview" or a "reasonable fear interview." These interviews serve only as a screening tool by USCIS. These interviews do not constitute an asylum application and do not meet the asylum "one-year deadline.If you have a credible fear interview in your case, you must still file an asylum application with the court having jurisdiction over your case. Those who receive reasonable fear interviews generally are ineligible for asylum, but may be eligible for withholding of removal or other forms of relief. 

    Both affirmative and defensive asylum applications are filed by submitting the U.S. Government's I-589 form, the "Application for Asylum and for Withholding of Removal," with additional supporting evidence, to the proper office or court depending on the asylum seeker's specific circumstances. Once again, asylum seekers should seek legal advice from a qualified asylum lawyer prior to applying for asylum. If an asylum seeker in the United States is granted asylum, they become an "asylee." If an asylum seeker's application is denied by the courts and they are not in lawful status, they will generally be deported unless eligible for another type of legal relief from removal.

  • Benefits of Asylum

    Asylees may legally work in the United States, cannot be forced to return to their home country, can petition for spouses and certain unmarried children abroad to come to the United States, and can apply to become a legal permanent resident (green card holder) one year after being granted asylum. Once an asylee becomes a legal permanent resident, they are on the path to U.S. citizenship.

    Asylees are cautioned that asylee status, legal permanent resident status, and U.S. citizenship can be revoked at any time upon a finding of fraud in the initial asylum application. Additionally asylees and legal permanent residents do not have the same legal protections as U.S. citizens. The commission of certain crimes can render an asylee or legal permanent resident removable from the United States.

  • Asylum and Immigration Links

    Below is a list of resources and links relevant to the KAP and those interested in asylum in the United States. Asylum seekers should consult a qualified asylum attorney regarding their asylum case.

    • United States Citizenship and Immigration Services - A division of the Department of Homeland Security charged with managing legal migration to the United States, including some asylum claims. Click here for their asylum page.
    • Executive Office for Immigration ReviewEOIR is a division of the Department of Justice that administers and adjudicates immigration court proceedings.
    • American Immigration Lawyers Association - AILA is a non-profit organization of lawyers and law professors dedicated to legal education, training and knowledge dissemination of U.S. immigration law.
    • Colorado Asylum Project- Our initial partner, the Colorado Asylum Project, assists indigent, non-detained asylum seekers find pro bono legal counsel and legal resources, and provides referrals to social services. CAP also provides pro bono attorneys with video and written training materials, accredited CLEs featuring nationally-known asylum experts, mentors, and case support.
    • Rocky Mountain Immigrant Advocacy Network - Another partner, RMIAN provides free immigration legal services to individuals in immigration detention and to children throughout Colorado.
    • Center for Community Engagement to advance Scholarship & Learning - University of Denver - KAP was sponsored by a grant from DU's Center for Community Engagement to advance Scholarship & Learning (CCESL), an initiative bringing together faculty, students, and the community to support DU's mission of being a private university dedicated to the public good.
    • ICRS Latin America Center - The Latin America Center at the Institute for Comparative and Regional Studies is the Korbel School's hub for scholarship and events on Latin America. The center supports and coordinates educational, research, policy and cultural activities related to Latin America and international relations in the region.
    • ICRS Center for Middle East Studies - CMES is dedicated to promoting and strengthening the study and understanding of the societies, political systems and international relations of the Middle East and broader Islamic world, both at DU and throughout the Mountain West.
    • Human Trafficking Center - HTC at the University of Denver provides professional research, writing and educational outreach regarding human trafficking and all forms of modern day slavery.
    • Center for Gender & Refugee Studies- UC Hastings College of the Law - CGRS is a think tank and advocacy networks of attorneys specializing in protection of women, children and LGBT individuals seeking refuge from persecution in their home countries.

This website is intended for general informational purposes only. The information provided is not legal advice, is not a substitute for legal advice, and may not be current. Asylum seekers should seek legal advice from a qualified asylum lawyer prior to applying for asylum.