LegiStorm

Summary:

Foreign nationals in the United States who are not in removal proceedings may apply to the U.S. Department of Homeland Security’s (DHS’s) U.S. Citizenship and Immigration Services (USCIS) for affirmative asylum. By contrast, persons in removal proceedings before the U.S. Department of Justice’s Executive Office for Immigration Review (EOIR) may file defensive asylum applications, which are adjudicated by immigration judges in the course of those proceedings. Most migrants who arrive at the U.S. border without authorization and are able to pursue asylum claims will do so through the defensive asylum process. Affirmative asylum application filings have reached historical highs in recent years. Filings topped 450,000 in FY2023— nearly double the FY2022 number and more than three times the number in the earlier peak year of FY2017. To apply for asylum affirmatively, a foreign national in the United States who is not in removal proceedings may submit Form I-589 to USCIS. Foreign nationals may submit affirmative asylum applications regardless of their immigration status. An application may include a principal applicant and one or more dependents (i.e., spouse and unmarried children under age 21). Special rules apply to children under age 18 who qualify as unaccompanied alien children; they may apply for asylum affirmatively even if they are in removal proceedings. Affirmative asylum application filings have been impacted by a variety of factors. Among these in the last few years have been humanitarian crises in Cuba and Venezuela, which have increased emigration from these countries to the United States. According to DHS data for FY2019-FY2023 combined, Venezuela and Cuba were the top two countries of nationality for application filings. They accounted for more than half of all the affirmative asylum applications filed during this period. Affirmative asylum filings in recent years have also been impacted by various U.S. immigration policies, such as the establishment of new immigration parole policies. Affirmative asylum applications are adjudicated by asylum officers in the USCIS Asylum Division. To be granted asylum, an applicant must satisfy the definition of a “refugee” in the Immigration and Nationality Act (INA), among other requirements. The act defines a refugee, in brief, as a person who is unable or unwilling to return to the home country because of persecution or a well-founded fear of persecution based on one of five protected grounds (race, religion, nationality, membership in a particular social group, or political opinion). Persons granted asylum (asylees) have a dedicated pathway to U.S. lawful permanent resident (LPR) status under the INA. After one year of physical presence in the United States, an asylee may become an LPR through the adjustment of status process, subject to certain requirements. USCIS data on its decisions on affirmative asylum applications show four separate outcome categories: grants, denials, referrals to EOIR, and closures. In recent years, the most common outcome has been referral to EOIR. USCIS refers asylum cases to EOIR when it determines that an applicant is not eligible for asylum and appears to be inadmissible or deportable under the INA. DHS reports various data on USCIS affirmative asylum grants to individuals, including annual totals and grants by country of nationality. According to data for FY2019-FY2023 combined, the top five countries of nationality for individuals granted asylum affirmatively were Afghanistan, Venezuela, China, Turkey, and Egypt. They accounted for almost 60% of all affirmative asylum grants during this five-year period. Other data, which are limited to principal applicants, concern the basis of the asylum claim. According to DHS data for FY2020-FY2023 combined, persecution or a well-founded fear of persecution on account of political opinion was the basis for more than half of the affirmative asylum grants over this fouryear period. Three protected grounds (political opinion, membership in a particular social group, and religion) accounted for over 90% of the total number of asylum grants to principal applicants during these four years.