8 U.S.C. § 1158
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.
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.
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.
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.
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).
Subparagraphs (A) and (B) shall not apply to an unaccompanied alien child (as defined in section 279(g) of title 6).
No court shall have jurisdiction to review any determination of the Attorney General under paragraph (2).
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) of this title.
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) 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.
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.
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.
Paragraph (1) shall not apply to an alien if the Attorney General determines that-
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.
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).
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).
There shall be no judicial review of a determination of the Attorney General under subparagraph (A)(v).
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.
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.
An asylum officer (as defined in section 1225(b)(1)(E) of this title) shall have initial jurisdiction over any asylum application filed by an unaccompanied alien child (as defined in section 279(g) of title 6), regardless of whether filed in accordance with this section or section 1225(b) of this title.
In the case of an alien granted asylum under subsection (b), the Attorney General-
Asylum granted under subsection (b) does not convey a right to remain permanently in the United States, and may be terminated if the Attorney General determines that-
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.
The Attorney General shall establish a procedure for the consideration of asylum applications filed under subsection (a). 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.
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.
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.
At the time of filing an application for asylum, the Attorney General shall-
The procedure established under paragraph (1) shall provide that-
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.
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.
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.
The provisions of this section and section 1159(b) of this title shall apply to persons physically present in the Commonwealth of the Northern Mariana Islands or arriving in the Commonwealth (whether or not at a designated port of arrival and including persons who are brought to the Commonwealth after having been interdicted in international or United States waters) only on or after January 1, 2014.
1 So in original. Probably should be "sections".
8 U.S.C. § 1158
EDITORIAL NOTES
REFERENCES IN TEXTThis chapter, referred to in subsec. (d)(5)(B), (6), was in the original, "this Act", meaning act June 27, 1952, ch. 477, 66 Stat. 163, known as the Immigration and Nationality Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1101 of this title and Tables.
AMENDMENTS2008-Subsec. (a)(2)(E). Pub. L. 110-457, §235(d)(7)(A), added subpar. (E).Subsec. (b)(3)(C). Pub. L. 110-457, §235(d)(7)(B), added subpar. (C).Subsec. (e). Pub. L. 110-229 added subsec. (e).2005-Subsec. (b)(1). Pub. L. 109-13, §101(a)(1), (2), designated existing provisions as subpar. (A), inserted subpar. heading, and substituted "The Secretary of Homeland Security or the Attorney General" for "The Attorney General" and "the Secretary of Homeland Security or the Attorney General" for "the Attorney General" in two places.Subsec. (b)(1)(B). Pub. L. 109-13, §101(a)(3), added subpar. (B)Subsec. (b)(2)(A)(v). Pub. L. 109-13, §101(b), substituted "described in" for "inadmissible under" in two places and struck out "removable under" before "section 1227(a)(4)(B)". 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, §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).
STATUTORY NOTES AND RELATED SUBSIDIARIES
EFFECTIVE DATE OF 2008 AMENDMENT Amendment by Pub. L. 110-229 effective on the transition program effective date described in section 1806 of Title 48, Territories and Insular Possessions, see section 705(b) of Pub. L. 110-229 set out as an Effective Date note under section 1806 of Title 48.
EFFECTIVE DATE OF 2005 AMENDMENT Pub. L. 109-13, div. B, title I, §101(h)(1), (2), May 11, 2005, 119 Stat. 305, provided that: "(1) The amendments made by paragraphs (1) and (2) of subsection (a) [amending this section] shall take effect as if enacted on March 1, 2003."(2) The amendments made by subsections (a)(3), (b), (c), and (d) [amending this section and sections 1229a and 1231 of this title] shall take effect on the date of the enactment of this division [May 11, 2005] and shall apply to applications for asylum, withholding, or other relief from removal made on or after such date."
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 Pub. L. 104-208, div. C, title VI, §604(c), Sept. 30, 1996, 110 Stat. 3009-694, 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]. Pub. L. 104-132, title IV, §421(b), Apr. 24, 1996, 110 Stat. 1270, 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 Pub. L. 101-649, title V, §515(b), Nov. 29, 1990, 104 Stat. 5053, as amended by Pub. L. 102-232, title III, §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.
REGULATIONS Pub. L. 110-340, §2(d), Oct. 3, 2008, 122 Stat. 3736, provided that: "(1) ISSUANCE OF REGULATIONS.-Not later than 60 days after the date of enactment of this Act [Oct. 3, 2008], the Attorney General and the Secretary of Homeland Security shall promulgate final regulations establishing that, for purposes of sections 241(b)(3)(B)(iii) and 208(b)(2)(A)(iii) of the Immigration and Nationality Act ( 8 U.S.C. 1231(b)(3)(B)(iii); 8 U.S.C. 1158(b)(2)(A)(iii)), an alien who is deportable under section 237(a)(4)(F) of such Act ( 8 U.S.C. 1227(a)(4)(F) ) or inadmissible under section 212(a)(3)(G) of such Act ( 8 U.S.C. 1182(a)(3)(G) ) shall be considered an alien with respect to whom there are serious reasons to believe that the alien committed a serious nonpolitical crime. "(2) AUTHORITY TO WAIVE CERTAIN REGULATORY REQUIREMENTS.-The requirements of chapter 5 of title 5, United States Code (commonly referred to as the 'Administrative Procedure Act'), chapter 35 of title 44, United States Code (commonly referred to as the 'Paperwork Reduction Act'), or any other law relating to rulemaking, information collection, or publication in the Federal Register, shall not apply to any action to implement paragraph (1) to the extent the Attorney General or the Secretary Homeland of [sic] Security determines that compliance with any such requirement would impede the expeditious implementation of such paragraph."
ABOLITION OF IMMIGRATION AND NATURALIZATION SERVICE AND TRANSFER OF FUNCTIONSFor abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under section 1551 of this title.
EXPEDITIOUS REMOVAL FOR DENIED ASYLUM APPLICANTS Pub. L. 103-322, title XIII, §1300050005,, 108 Stat. 2028, as amended by Pub. L. 104-208, div. C, title III, §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 GENERALPub. L. 96-212, title II, §204(d)(2), Mar. 17, 1980, 94 Stat. 109, 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."
- Attorney General
- The term "Attorney General" means the Attorney General of the United States.
- Service
- The term "Service" means the Immigration and Naturalization Service of the Department of Justice.
- State
- The term "State" includes the District of Columbia, Puerto Rico, Guam, the Virgin Islands of the United States, and the Commonwealth of the Northern Mariana Islands.
- alien
- The term "alien" means any person not a citizen or national of the United States.
- conviction
- The term "conviction" means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where-(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.
- immigration judge
- The term "immigration judge" means an attorney whom the Attorney General appoints as an administrative judge within the Executive Office for Immigration Review, qualified to conduct specified classes of proceedings, including a hearing under section 1229a of this title. An immigration judge shall be subject to such supervision and shall perform such duties as the Attorney General shall prescribe, but shall not be employed by the Immigration and Naturalization Service.
- naturalization
- The term "naturalization" means the conferring of nationality of a state upon a person after birth, by any means whatsoever.
- permanent
- The term "permanent" means a relationship of continuing or lasting nature, as distinguished from temporary, but a relationship may be permanent even though it is one that may be dissolved eventually at the instance either of the United States or of the individual, in accordance with law.
- person
- The term "person" means an individual or an organization.
- refugee
- The term "refugee" means (A) 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, or (B) in such special circumstances as the President after appropriate consultation (as defined in section 1157(e) of this title) may specify, any person who is within the country of such person's nationality or, in the case of a person having no nationality, within the country in which such person is habitually residing, and who is persecuted or who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The term "refugee" does not include any person who 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. For purposes of determinations under this chapter, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.
- residence
- The term "residence" means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.
- admission
- The terms "admission" and "admitted" mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.