A person may apply for asylum affirmatively or as a defense to removal if the noncitizen meets the definition of “refugee” under the Immigration and Nationality Act (INA) and is not subject to one of the statutory bars.

A “refugee” is defined as “any person who is outside any country in which such person’s nationality or…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.

Thus, in order to show past persecution, applicant must demonstrate 1) that an incident, or incidents, that rise to the level of persecution; 2) that the persecution was on account of one or more of the five protected grounds; and 3) that the persecution was committed either by the government or by forces that the government was unable or unwilling to control.

To establish a well-founded fear of persecution, petitioners must show their fear to be both objectively reasonable and subjectively genuine. A foreign national satisfies the subjective component by credibly testifying that he genuinely fears persecution. The objective prong requires a showing of “some direct, credible evidence supporting the claim.”


In order to establish eligibility for asylum under the INA, the applicant must file the asylum application within one year of the date of his or her last arrival in the United States. There are some exceptions to the one year filing deadline.


To affirmatively apply for Asylum, a foreign national must file an application with United States Citizenship and Immigration Services (USCIS). When applying for affirmative asylum, a foreign national must be present in the United States. After filing, the foreign national gets interviewed  by an asylum officer who then determines whether to approve the application or refer it to an Immigration Judge (IJ). Thus, applicants submitting Affirmative Asylum application gets two chance to present their Asylum claim—(1) before USCIS; and (2) before IJ.


A defensive application for asylum occurs when foreign national requests asylum as a defense against removal from the U.S. For asylum processing to be defensive, the foreign national must be in removal proceedings in Immigration Court with the Executive Office for Immigration Review (EOIR). Individuals are generally placed into defensive asylum processing in one of two ways:

  1. They are referred to an Immigration Judge by USCIS after they have been determined to be ineligible for asylum at the end of the affirmative asylum process, or
  2. They are placed in removal proceedings because they:
    • Were apprehended (or caught) in the United States or at a U.S. port of entry without proper legal documents or in violation of their immigration status,
    • Were caught by U.S. Customs and Border Protection (CBP) trying to enter the United States without proper documentation, were placed in the expedited removal process, and were found to have a credible fear of persecution or torture by an Asylum Officer.

If an applicant for asylum establishes past persecution and the DHS meets its burden of proving a fundamental change in country conditions, an applicant may also be eligible for humanitarian asylum.

An applicant may show eligibility for humanitarian asylum in two ways. The first way requires an applicant to demonstrate “compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution.”  The second way requires an applicant to establish “that there is a reasonable possibility that he or she may suffer other serious harm upon removal to that country.”


Persecution is not defined in the INA.  However, the United States Court of Appeals, Ninth Circuit in Fisher v. INS, 79 F.3d 955, 961 (9th Cir.1996), defined persecution as “the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive.” Persecution does not require that an applicant establish permanent or serious injuries. Further, persecution “encompasses a variety of forms of adverse treatment, including non-life threatening violence and physical abuse or non-physical forms of harm. Additionally, persecution may be emotional or psychological. In granting relief, persecution should be treated cumulatively.


The ultimate burden of proof is placed upon the applicant for asylum. However, where the applicant establishes past persecution, a well-founded fear of future persecution is presumed and the burden shifts to the Department of Homeland Security (DHS) to establish, by a preponderance of the evidence, a fundamental change in circumstances (usually changed country conditions) or that relocation, where it would be reasonable to do so under all the circumstances, would avoid the persecution.


In  the landmark decision of INS v. Cardoza-Fonseca, 480 U.S. 421 (1987), the U.S. Supreme Court rejecting the “clear probability” standard of persecution held that the well-founded fear standard for asylum is more generous than withholding of removal and therefore, can be satisfied by a lesser standard of persuasion and by different evidence.  Following Cardoza-Fonseca , the Board of Immigration Appeals (BIA) determined that asylum may be granted where “a reasonable person in his circumstances would fear persecution.”  See Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987).