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Types of Asylum
Legal Authorities
Alternatives to Asylum
INA §208.13, Establishing Eligibility

Types of Asylum

Affirmative Asylum

When a noncitizen applies for asylum before they are in removal proceedings

Defensive Asylum

When a non-citizen is already in removal proceedings when they apply for asylum.

Legal Authorities

• Statutes
  • Immigration and Nationality Act (INA)
    • INA §§ 101(a)(42)(A), 208(b)(1)
  • Title 8 of the U.S. Code
• Regulations
  • Title 8 of the Code of Federal Regulations (8 C.F.R.)
    • 8 C.F.R. § 1208.13
• Board of Immigration Appeals (BIA or the Board) precedent decisions, Attorney General (AG) precedent decisions, Federal court decisions, and Supreme Court decisions.

Alternatives to Asylum

 

	ASYLUM	WITHHOLDING	CAT PROTECTION
Type of Harm	Persecution	Future threat to life or freedom	Torture
Likelihood of Harm	Reasonable possibility. A 10% chance can be sufficient	More likely than not. > 50%	More likely than not. > 50%
Nexus Requires	Yes—protected ground must be one central reason for the harm.	Yes—harm must be based on a protected ground.	No nexus required
Who Inflicts Harm	The government or A non-government actor the government is unable or unwilling to control.	The government or A non-government actor the government is unable or unwilling to control.	A public official or person acting in an official capacity or any person acting at the instigation of or with the consent or acquiescence of a public official

For more on Withholding of Removal or the Convention Against Torture see those pages.

INA §208.13 Establishing asylum eligibility

See INA §208.13

(a) Burden of proof. The burden of proof is on the applicant for asylum to establish that he or she is a refugee as defined in section 101(a)(42) of the Act. The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration. The fact that the applicant previously established a credible fear of persecution for purposes of section 235(b)(1)(B) of the Act does not relieve the alien of the additional burden of establishing eligibility for asylum.

(b) Eligibility. The applicant may qualify as a refugee either because he or she has suffered past persecution or because he or she has a well-founded fear of future persecution.

(1) Past persecution. An applicant shall be found to be a refugee on the basis of past persecution if the applicant can establish that he or she has suffered persecution in the past in the applicant’s country of nationality or, if stateless, in his or her country of last habitual residence, on account of race, religion, nationality, membership in a particular social group, or political opinion, and is unable or unwilling to return to, or avail himself or herself of the protection of, that country owing to such persecution. An applicant who has been found to have established such past persecution shall also be presumed to have a well-founded fear of persecution on the basis of the original claim. That presumption may be rebutted if an asylum officer or immigration judge makes one of the findings described in paragraph (b)(1)(i) of this section. If the applicant’s fear of future persecution is unrelated to the past persecution, the applicant bears the burden of establishing that the fear is well-founded.

(i) Discretionary referral or denial. Except as provided in paragraph (b)(1)(iii) of this section, an asylum officer shall, in the exercise of his or her discretion, refer or deny, or an immigration judge, in the exercise of his or her discretion, shall deny the asylum application of an alien found to be a refugee on the basis of past persecution if any of the following is found by a preponderance of the evidence: