Legal Standards for Asylum in the United States

Date of Information: 01/25/2025

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U.S. Asylum Law and International Standards

It is important to remember that U.S. asylum law represents the American people's values and the United States' duties as a signatory to multilateral treaties on treating refugees. While it is likely that the United States would have some sort of policy on humanitarian immigration in the absence of international standards, modern U.S. aslyum law is also the fulfillment of our obligations under the 1951 U.N. Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. Because of that, many of the details of U.S. asylum law are traceable to those treaties. For more information, please refer to the research guide on International Standards Underlying U.S. Immigration Law.

The Refugee Act of 1980

The fundamentals of asylum law currently in effect in the United States are based on the Refugee Act of 1980. The Act created a uniform and comprehensive addressing refugee and asylee admissions to the United States. Its most salient features over preexisting laws were:

  • Removing the geographic and ideological limits on the definition of “refugee” that had been introduced by 1965 Amendments to the Immigration and Nationality Act (“INA”);

  • Formally adopting the United Nations’ definition of a “refugee,” the key definition applying to the admission of both refugees and asylees to this day;

  • Providing the first statutory basis for asylum;

  • Creating the Office of Refugee Resettlement to oversee resettlement programs;

  • Increasing the number of refugees who could be admitted annually; and

  • Establishing a process whereby the President—in consultation with Congress—sets the annual number of refugee admissions and the countries from which the refugees will be admitted.

INA § 208 (8 U.S.C. § 1158)

The requirements for asylum in the United States are outlined in INA Section 208. Those provisions are codified at 8 U.S.C. § 1158. The general, operative provision states, “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[.]” 8 U.S.C. § 1158(a)(1).

Eligibility Exceptions:

The alien may not apply for asylum if:

  • He can be legally removed to a third country, see § 1158(a)(2)(A)

  • He is applying later than one year after his arrival in the United States, see § 1158(a)(2)(B); or

  • He has unsuccessfully applied for asylum in the United States previously, see § 1158(a)(2)(c).

Exception to the Exceptions:

Despite the exceptions in 8 U.S.C. § 1158(a)(2), an alien regains his right to apply for asylum if he “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[.]”

The Burden of Proof

The burden of proof is on the applicant for asylum. See 8 U.S.C. § 1158(b)(1)(B)(1). INA § 208 specifies that “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.” 8 U.S.C. § 1158(b)(1)(B)(i). It also specifies that an applicant’s testimony is sufficient evidence, and no corroboration is necessary, “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.” 8 U.S.C. § 1158(b)(1)(B)(ii).


Notably, the statute does not specify a quantum of proof that the applicant has to meet, e.g. “proof beyond a reasonable doubt,” “a preponderance of the evidence,” etc. However, subsequent case law has clarified the quantum of proof necessary to establish eligibility for asylum in comparison with the quantum of proof necessary to establish eligibility for withholding of removal. For more information, please see the research guide on those quantums of proof.

The Test for Asylum

The general standard an alien has to meet to qualify for asylum in the United States is whether they meet the definition of a “refugee.” See 8 U.S.C. § 1158(b)(1)(A). In fact, Section 1158(b)(1)(A) specifically incorporates the definition of “refugee” from INA Section 101(a)(42)(A) (8 U.S.C. § 1101(a)(42)(A)). In turn, INA Section 101(a)(42)(A) takes the definition of “refugee” from Article I.A.(1) of the 1951 Convention. The definition, as it stands in INA Section 101(a)(42)(A), is:

“ . . . 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.”

Judicial Interpretation of INA § 208

In 1985, the United States Department of Justice, Board of Immigration Appeals, clarified the elements an alien must prove to qualify for asylum in the United States in Matter of Acosta, 19 I. & N. Dec. 211, 211 (BIA 1985). Therein, it enumerated four elements for an aslyum claim:

  1. “[T]he alien must have a ‘fear’ of ‘persecution’;

  2. “[T]he fear must be ‘well-founded’;

  3. “[T]he persecution feared must be ‘on account of race, religion, nationality, membership in a particular social group, or political opinion’; and

  4. “[T]he alien must be unable or unwilling to return to his country of nationality or to the country in which he last habitually resided because of persecution or his well-founded fear of persecution.”


    Matter of Acosta, 19 I. & N. Dec. 211, 219 (BIA 1985).

Other research guides delve into the nuances of each element.

What if an Alien Does Not Qualify for Asylum but Still Faces Imminent Persecution?

As described above, there are situations where an alien is not eligible to qualify for asylum. However, they are not invariably doomed. As a failsafe, there is an alternative to asylum that is reserved for the hardest of cases: “withholding of removal.” Withholding of removal is a remedy of last resort. Although it fulfills some of the same humanitarian goals as asylum, it is only available by a higher standard of proof. It also does not come with the same benefits as asylum. For more information, please consult our research guide on withholding of removal.

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