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  5. Obtaining Asylum in the United States

Obtaining Asylum in the United States

Alert Type info

ALERT: Court Order on Circumvention of Lawful Pathways Final Rule

On Aug. 3, 2023, the U.S. Court of Appeals for the Ninth Circuit issued a stay of the U.S. District Court for the Northern District of California’s order in East Bay Sanctuary Covenant v. Biden, 18-cv-06810 (N.D. Cal.), vacating the Circumvention of Lawful Pathways (CLP) rule. USCIS continued to apply the CLP rule during the stay. On April 10, 2025, the Ninth Circuit vacated its prior order staying proceedings and the district court’s judgment and remanded the case to the district court for further proceedings. Although the CLP rule sunsetted on May 12, 2025, its provisions remain applicable to those who entered the United States between May 12, 2023, and May 11, 2025. Until the district court renders a decision, USCIS will continue to apply the CLP rule where appropriate.

Under the rule, certain individuals who entered the United States through its southwest land border or adjacent coastal borders are presumed to be ineligible for asylum, unless they can demonstrate an exception to the rule or rebut the presumption.

There are 3 ways of obtaining asylum in the United States:

  • The affirmative process;
  • An Asylum Merits Interview after a positive credible fear determination; or
  • The defensive process. 

Affirmative Asylum Processing with USCIS

To obtain asylum through the affirmative asylum process you must be physically present in the United States. You may apply for asylum regardless of how you arrived in the United States or your current immigration status.

You must apply for asylum within 1 year of the date of your last arrival in the United States, unless you can show:

  • Changed circumstances that materially affect your eligibility for asylum or extraordinary circumstances relating to the delay in filing; and
  • You filed within a reasonable amount of time given those circumstances.

You may apply for affirmative asylum by submitting Form I-589, Application for Asylum and for Withholding of Removal, to USCIS.

If your case is not approved and you do not have a legal immigration status, we will issue a Form I-862, Notice to Appear (NTA), and refer your case to an immigration judge with the Department of Justice's Executive Office for Immigration Review (EOIR). The immigration judge conducts a “de novo” hearing of the case. This means that the judge conducts a new hearing and issues a decision that is independent of the decision made by USCIS. In certain circumstances, if USCIS does not have jurisdiction over your case, the asylum office will issue a Form I-863, Notice of Referral to Immigration Judge, for an asylum-only hearing. See the section “Defensive Asylum Processing With EOIR” below if this situation applies to you.

If you were previously issued an NTA that was not filed and docketed with the EOIR immigration court, or your previously issued NTA was filed and docketed with EOIR either shortly before (within 21 days) or after you filed your Form I-589 with USCIS, USCIS will refile your NTA (if necessary) and send your Form I-589 to the immigration court for adjudication.

To determine where to file your Form I-589, follow the instructions under the “Where to File” section on our Form I-589 page. For more information, please see What Happens After You File Your Form I-589 With USCIS.

You may live in the United States while your Form I-589 is pending before USCIS. If you are found ineligible, you can remain in the United States while your Form I-589 is pending with the immigration judge. Asylum applicants are not authorized to work unless you meet certain requirements. For more information, please see Permission to Work in the United States. Affirmative asylum applicants are rarely detained by U.S. Immigration and Customs Enforcement (ICE).

Please see the Affirmative Asylum Process for step-by-step information on applying for asylum through the affirmative asylum process.

Asylum Merits Interview with USCIS After a Positive Credible Fear Determination

If you are placed in expedited removal proceedings and indicate an intention to apply for asylum, express a fear of persecution or torture, or express a fear of return to your country, you will be referred to USCIS for a credible fear screening. For more information, visit the Credible Fear Screenings page.

A USCIS asylum officer will conduct a credible fear screening interview to determine whether you have a credible fear of persecution or torture. For more information, visit the Questions and Answers: Credible Fear Screening page.

If an asylum officer finds that you have a credible fear of persecution or torture, USCIS may either:

  • Retain and consider your application for asylum and also consider your eligibility for withholding of removal and protection under the Convention Against Torture (CAT) in a second interview. This is known as an Asylum Merits Interview. An asylum officer will decide whether you are eligible for asylum. If necessary, an asylum officer will also determine whether you demonstrated eligibility for withholding of removal or protection under CAT based on the record before USCIS; or
  • Issue a Notice to Appear before an immigration judge for consideration of your asylum, withholding of removal, and CAT protection claims. When you file the Form I-589, Application for Asylum and for Withholding of Removal, with the immigration court, it places you in the “defensive” asylum process. See “Defensive Asylum Processing With EOIR” below for more information.

For more information, visit the Asylum Merits Interview with USCIS: Processing After a Positive Credible Fear Determination and Questions and Answers: Credible Fear Screening pages.

Defensive Asylum Processing with EOIR

A defensive application for asylum occurs when you request asylum as a defense against removal from the United States. For asylum processing to be defensive, you 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:

  • 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
  • They are placed in removal proceedings because they:
    • Were apprehended in the United States or at a U.S. port of entry without proper legal documents or in violation of their immigration status; or
    • Were apprehended 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. See Questions & Answers: Credible Fear Screenings for more information on the credible fear process.

Immigration judges hear defensive asylum cases in adversarial (courtroom-like) proceedings, as necessary. The judge will hear arguments from both of the following parties:

  • You (and your attorney, if represented)
  • The U.S. government, which is represented by an attorney from U.S. Immigration and Customs Enforcement (ICE)

The immigration judge then decides whether you are eligible for asylum. If the immigration judge finds you eligible, they will grant asylum. If the immigration judge finds you ineligible for asylum, they will determine whether you are eligible for any other forms of relief from removal. If the immigration judge finds you ineligible for other forms of relief, they will order you to be removed from the United States. Either party can appeal the immigration judge’s decision.

See the Granted a Green Card by an Immigration Judge or Board of Immigration Appeals page for information about the grant of asylum by an immigration judge.

For information about the Executive Office for Immigration Review, including the Immigration Courts and the Board of Immigration Appeals, see Executive Office for Immigration Review. To determine where to file your Form I-589, follow the instructions under the “Where to File” section on our Form I-589 page.

Key Differences Between Affirmative Asylum, Asylum Merits Interview with USCIS after a Positive Credible Fear Determination, and Defensive Asylum

Affirmative Asylum Processing With USCISAsylum Merits Interview With USCIS After a Positive Credible Fear DeterminationDefensive Asylum Processing With EOIR
You have not been placed in removal proceedings before an immigration judge (unless you are an unaccompanied alien child).

You were subject to expedited removal and found to have a credible fear of persecution or torture.

You have not been placed in removal proceedings before an immigration judge.

You have been placed in removal proceedings before an immigration judge.
You affirmatively submit Form I-589, Application for Asylum and for Withholding of Removal, to USCIS.The written record of the positive credible fear determination made during the credible fear screening process is treated as your application for asylum. You do not need to file a Form I-589 with USCIS.

You:

  • are placed in removal proceedings by USCIS after USCIS did not grant you asylum in the affirmative process;
  • are placed in removal proceedings by ICE or CBP for immigration violations; or
  • were subject to expedited removal, found to have a credible fear of persecution or torture, and issued a Notice to Appear.

If USCIS referred you to EOIR, the asylum application you filed with USCIS will be reviewed again by an immigration judge, if it was not abandoned or dismissed. If you did not file an asylum application with USCIS, you must submit a Form I-589 to an immigration judge with EOIR if you wish to apply for asylum.

We may schedule you to appear before a USCIS asylum officer for a non-adversarial affirmative asylum interview.

You appeared for a credible fear screening interview with a USCIS asylum officer. You were found to have a credible fear of persecution or torture, and USCIS retained your asylum application for further consideration in a non-adversarial second interview known as an Asylum Merits Interview, where you may be granted asylum.

If USCIS does not grant asylum  following the Asylum Merits Interview, USCIS will place you into streamlined INA section 240 proceedings with an immigration judge. 

You appear before an immigration judge with EOIR for an adversarial, court-like hearing, if necessary.
You usually must provide a qualified interpreter for the affirmative asylum interview.USCIS provides a qualified interpreter for the Asylum Merits Interview.The immigration court provides a qualified interpreter for the asylum hearing and all other court proceedings.

Related Links

  • Form I 589, Application for Asylum and for Withholding of Removal
Last Reviewed/Updated:
07/28/2026
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