208 INA Asylum [8 USC 1158]

(a) Authority to apply for asylum

(1) In general

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) [§235 INA] of this title.

(2) Exceptions

(A) Safe third country – Paragraph (1) shall not apply to an alien if the Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien’s nationality or, in the case of an alien having no nationality, the country of the alien’s last habitual residence) in which the alien’s life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection, unless the Attorney General finds that it is in the public interest for the alien to receive asylum in the United States.

(B) Time limit – Subject to subparagraph (D), paragraph (1) shall not apply to an alien unless the alien demonstrates by clear and convincing evidence that the application has been filed within 1 year after the date of the alien’s arrival in the United States.

(C) Previous asylum applications – Subject to subparagraph (D), paragraph (1) shall not apply to an alien if the alien has previously applied for asylum and had such application denied.

(D) Changed circumstances – An application for asylum of an alien may be considered, notwithstanding subparagraphs (B) and (C), if the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within the period specified in subparagraph (B).

(3) Limitation on judicial review – No court shall have jurisdiction to review any determination of the Attorney General under paragraph (2).

(b) Conditions for granting asylum

(1) In general

(A) Eligibility – The Secretary of Homeland Security or the Attorney General may grant asylum to an alien who has applied for asylum in accordance with the requirements and procedures established by the Secretary of Homeland Security or the Attorney General under this section if the Secretary of Homeland Security or the Attorney General determines that such alien is a refugee within the meaning of section 1101(a)(42)(A) [§101 INA] of this title.

(B) Burden of proof

(i) In general – The burden of proof is on the applicant to establish that the applicant is a refugee, within the meaning of section 1101(a)(42)(A) [§101 INA] of this title. To establish that the applicant is a refugee within the meaning of such section, the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.

(ii) Sustaining burden – 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. In determining whether the applicant has met the applicant’s burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.

(iii) Credibility determination – Considering the totality of the circumstances, and all relevant factors, 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 (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. There is no presumption of credibility, however, if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal.

(2) Exceptions

(A) In general – Paragraph (1) shall not apply to an alien if the Attorney General determines that -

(i) the alien ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion;

(ii) the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States;

(iii) there are serious reasons for believing that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States;

(iv) there are reasonable grounds for regarding the alien as a danger to the security of the United States;

(v) the alien is described in subclause (I), (II), (III), (IV), or (VI) of section 1182(a)(3)(B)(i) [§212 INA] of this title or section 1227(a)(4)(B) [§237 INA] of this title (relating to terrorist activity), unless, in the case only of an alien described in subclause (IV) of section 1182(a)(3)(B)(i) [§212 INA] of this title, the    Attorney General determines, in the Attorney General’s discretion, that there are not reasonable grounds for regarding the alien as a danger to the security of the United States; or

(vi) the alien was firmly resettled in another country prior to arriving in the United States.

(B) Special rules

(i) Conviction of aggravated felony – For purposes of clause (ii) of subparagraph (A), an alien

who has been convicted of an aggravated felony shall be
considered to have been convicted of a particularly serious
crime.
(ii) Offenses
The Attorney General may designate by regulation offenses
that will be considered to be a crime described in clause
(ii) or (iii) of subparagraph (A).
(C) Additional limitations
The Attorney General may by regulation establish additional
limitations and conditions, consistent with this section, under
which an alien shall be ineligible for asylum under paragraph
(1).
(D) No judicial review
There shall be no judicial review of a determination of the
Attorney General under subparagraph (A)(v).
(3) Treatment of spouse and children
(A) In general
A spouse or child (as defined in section 1101(b)(1)(A), (B),
(C), (D), or (E) [§101 INA] of this title) of an alien who is granted
asylum under this subsection may, if not otherwise eligible for
asylum under this section, be granted the same status as the
alien if accompanying, or following to join, such alien.
(B) Continued classification of certain aliens as children
An unmarried alien who seeks to accompany, or follow to join,
a parent granted asylum under this subsection, and who was
under 21 years of age on the date on which such parent applied
for asylum under this section, shall continue to be classified
as a child for purposes of this paragraph and section
1159(b)(3) [§209 INA] of this title, if the alien attained 21 years of age
after such application was filed but while it was pending.
(c) Asylum status
(1) In general
In the case of an alien granted asylum under subsection (b) of
this section, the Attorney General -
(A) shall not remove or return the alien to the alien’s
country of nationality or, in the case of a person having no
nationality, the country of the alien’s last habitual
residence;
(B) shall authorize the alien to engage in employment in the
United States and provide the alien with appropriate
endorsement of that authorization; and
(C) may allow the alien to travel abroad with the prior
consent of the Attorney General.
(2) Termination of asylum
Asylum granted under subsection (b) of this section does not
convey a right to remain permanently in the United States, and
may be terminated if the Attorney General determines that -
(A) the alien no longer meets the conditions described in
subsection (b)(1) of this section owing to a fundamental change
in circumstances;
(B) the alien meets a condition described in subsection
(b)(2) of this section;
(C) the alien may be removed, pursuant to a bilateral or
multilateral agreement, to a country (other than the country of
the alien’s nationality or, in the case of an alien having no
nationality, the country of the alien’s last habitual
residence) in which the alien’s life or freedom would not be
threatened on account of race, religion, nationality,
membership in a particular social group, or political opinion,
and where the alien is eligible to receive asylum or equivalent
temporary protection;
(D) the alien has voluntarily availed himself or herself of
the protection of the alien’s country of nationality or, in the
case of an alien having no nationality, the alien’s country of
last habitual residence, by returning to such country with
permanent resident status or the reasonable possibility of
obtaining such status with the same rights and obligations
pertaining to other permanent residents of that country; or
(E) the alien has acquired a new nationality and enjoys the
protection of the country of his or her new nationality.
(3) Removal when asylum is terminated
An alien described in paragraph (2) is subject to any
applicable grounds of inadmissibility or deportability under
section 1182(a) [§212 INA] and 1227(a) [§237 INA] of this title, and the alien’s
removal or return shall be directed by the Attorney General in
accordance with sections 1229a [§240 INA] and 1231 [§241 INA] of this title.

(d) Asylum procedure
(1) Applications
The Attorney General shall establish a procedure for the
consideration of asylum applications filed under subsection (a)
of this section. The Attorney General may require applicants to
submit fingerprints and a photograph at such time and in such
manner to be determined by regulation by the Attorney General.
(2) Employment
An applicant for asylum is not entitled to employment
authorization, but such authorization may be provided under
regulation by the Attorney General. An applicant who is not
otherwise eligible for employment authorization shall not be
granted such authorization prior to 180 days after the date of
filing of the application for asylum.
(3) Fees
The Attorney General may impose fees for the consideration of
an application for asylum, for employment authorization under
this section, and for adjustment of status under section 1159(b) [§209 INA]
of this title. Such fees shall not exceed the Attorney General’s
costs in adjudicating the applications. The Attorney General may
provide for the assessment and payment of such fees over a period
of time or by installments. Nothing in this paragraph shall be
construed to require the Attorney General to charge fees for
adjudication services provided to asylum applicants, or to limit
the authority of the Attorney General to set adjudication and
naturalization fees in accordance with section 1356(m) [§286 INA] of this
title.
(4) Notice of privilege of counsel and consequences of frivolous
application
At the time of filing an application for asylum, the Attorney
General shall -
(A) advise the alien of the privilege of being represented by
counsel and of the consequences, under paragraph (6), of
knowingly filing a frivolous application for asylum; and
(B) provide the alien a list of persons (updated not less
often than quarterly) who have indicated their availability to
represent aliens in asylum proceedings on a pro bono basis.
(5) Consideration of asylum applications
(A) Procedures
The procedure established under paragraph (1) shall provide
that -
(i) asylum cannot be granted until the identity of the
applicant has been checked against all appropriate records or
databases maintained by the Attorney General and by the
Secretary of State, including the Automated Visa Lookout
System, to determine any grounds on which the alien may be
inadmissible to or deportable from the United States, or
ineligible to apply for or be granted asylum;
(ii) in the absence of exceptional circumstances, the
initial interview or hearing on the asylum application shall
commence not later than 45 days after the date an application
is filed;
(iii) in the absence of exceptional circumstances, final
administrative adjudication of the asylum application, not
including administrative appeal, shall be completed within
180 days after the date an application is filed;
(iv) any administrative appeal shall be filed within 30
days of a decision granting or denying asylum, or within 30
days of the completion of removal proceedings before an
immigration judge under section 1229a [§240 INA] of this title,
whichever is later; and
(v) in the case of an applicant for asylum who fails
without prior authorization or in the absence of exceptional
circumstances to appear for an interview or hearing,
including a hearing under section 1229a [§240 INA] of this title, the
application may be dismissed or the applicant may be
otherwise sanctioned for such failure.
(B) Additional regulatory conditions
The Attorney General may provide by regulation for any other
conditions or limitations on the consideration of an
application for asylum not inconsistent with this chapter.
(6) Frivolous applications
If the Attorney General determines that an alien has knowingly
made a frivolous application for asylum and the alien has
received the notice under paragraph (4)(A), the alien shall be
permanently ineligible for any benefits under this chapter,
effective as of the date of a final determination on such
application.
(7) No private right of action
Nothing in this subsection shall be construed to create any
substantive or procedural right or benefit that is legally
enforceable by any party against the United States or its
agencies or officers or any other person.

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