Aliens and Nationality - 8 USC Section 1158

01/03/05

Sec. 1158. Asylum

(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) 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
The Attorney General may grant asylum to an alien who has
applied for asylum in accordance with the requirements and
procedures established by the Attorney General under this section
if the Attorney General determines that such alien is a refugee
within the meaning of section 1101(a)(42)(A) of this title.
(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 inadmissible under subclause (I), (II),
(III), (IV), or (VI) of section 1182(a)(3)(B)(i) of this
title or removable under section 1227(a)(4)(B) of this title
(relating to terrorist activity), unless, in the case only of
an alien inadmissible under subclause (IV) of section
1182(a)(3)(B)(i) 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) 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) 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 (!1) 1182(a) and 1227(a) of this title, and the alien's
removal or return shall be directed by the Attorney General in
accordance with sections 1229a and 1231 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)
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) 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 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 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.

AMENDMENTS
2002 - Subsec. (b)(3). Pub. L. 107-208 reenacted heading without
change and amended text generally. Prior to amendment, text read as
follows: "A spouse or child (as defined in section 1101(b)(1)(A),
(B), (C), (D), or (E) 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."
2001 - Subsec. (b)(2)(A)(v). Pub. L. 107-56 substituted "(III),
(IV), or (VI)" for "(III), or (IV)".
1996 - Pub. L. 104-208 substituted "Asylum" for "Asylum
procedure" as section catchline and amended text generally,
substituting subsecs. (a) to (d) for former subsecs. (a) to (e).
Subsec. (a). Pub. L. 104-132, Sec. 421(a), inserted at end "The
Attorney General may not grant an alien asylum if the Attorney
General determines that the alien is excludable under subclause
(I), (II), or (III) of section 1182(a)(3)(B)(i) of this title or
deportable under section 1251(a)(4)(B) of this title, unless the
Attorney General determines, in the discretion of the Attorney
General, that there are not reasonable grounds for regarding the
alien as a danger to the security of the United States."
1994 - Subsec. (e). Pub. L. 103-322 added subsec. (e).
1990 - Subsec. (d). Pub. L. 101-649 added subsec. (d).
EFFECTIVE DATE OF 2002 AMENDMENT
Amendment by Pub. L. 107-208 effective Aug. 6, 2002, and
applicable to certain beneficiary aliens, see section 8 of Pub. L.
107-208, set out as a note under section 1151 of this title.
EFFECTIVE DATE OF 2001 AMENDMENT
Amendment by Pub. L. 107-56 effective Oct. 26, 2001, and
applicable to actions taken by an alien before, on, or after Oct.
26, 2001, and to all aliens, regardless of date of entry or
attempted entry into the United States, in removal proceedings on
or after such date (except for proceedings in which there has been
a final administrative decision before such date) or seeking
admission to the United States on or after such date, with special
rules and exceptions, see section 411(c) of Pub. L. 107-56, set out
as a note under section 1182 of this title.
EFFECTIVE DATE OF 1996 AMENDMENTS
Section 604(c) of div. C of Pub. L. 104-208 provided that: "The
amendment made by subsection (a) [amending this section] shall
apply to applications for asylum filed on or after the first day of
the first month beginning more than 180 days after the date of the
enactment of this Act [Sept. 30, 1996].
Section 421(b) of Pub. L. 104-132 provided that: "The amendment
made by subsection (a) [amending this section] shall take effect on
the date of the enactment of this Act [Apr. 24, 1996] and apply to
asylum determinations made on or after such date."
EFFECTIVE DATE OF 1990 AMENDMENT
Section 515(b) of Pub. L. 101-649, as amended by Pub. L. 102-232,
title III, Sec. 306(a)(13), Dec. 12, 1991, 105 Stat. 1752, provided
that:
"(1) The amendment made by subsection (a)(1) [amending this
section] shall apply to convictions entered before, on, or after
the date of the enactment of this Act [Nov. 29, 1990] and to
applications for asylum made on or after such date.
"(2) The amendment made by subsection (a)(2) [amending section
1253 of this title] shall apply to convictions entered before, on,
or after the date of the enactment of this Act [Nov. 29, 1990] and
to applications for withholding of deportation made on or after
such date."
EFFECTIVE DATE
Section effective Mar. 17, 1980, and applicable to fiscal years
beginning with the fiscal year beginning Oct. 1, 1979, see section
204 of Pub. L. 96-212, set out as an Effective Date of 1980
Amendment note under section 1101 of this title.

EXPEDITIOUS REMOVAL FOR DENIED ASYLUM APPLICANTS
Section 130005 of Pub. L. 103-322, as amended by Pub. L. 104-208,
div. C, title III, Sec. 308(e)(1)(P), (17), Sept. 30, 1996, 110
Stat. 3009-620, 3009-621, provided:
"(a) In General. - The Attorney General may provide for the
expeditious adjudication of asylum claims and the expeditious
removal of asylum applicants whose applications have been finally
denied, unless the applicant remains in an otherwise valid
nonimmigrant status.
"(b) Employment Authorization. - [Amended this section.]
"(c) Authorization of Appropriations. - There are authorized to
be appropriated to carry out this section -
"(1) $64,000,000 for fiscal year 1995;
"(2) $90,000,000 for fiscal year 1996;
"(3) $93,000,000 for fiscal year 1997; and
"(4) $91,000,000 for fiscal year 1998."
TIME FOR ESTABLISHMENT OF ASYLUM PROCEDURE BY ATTORNEY GENERAL
Section 204(d)(2) of Pub. L. 96-212 provided that: "The Attorney
General shall establish the asylum procedure referred to in section
208(a) of the Immigration and Nationality Act (as added by section
201(b) of this title) [former subsec. (a) of this section] not
later than June 1, 1980."

Last modified: June 14, 2006