8 U.S.C. § 1158 : US Code - Section 1158: Asylum

Search 8 U.S.C. § 1158 : US Code - Section 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
(A) Eligibility
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.
(B) Burden of proof
(i) In general
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.
(ii) Sustaining burden
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.
(iii) Credibility determination
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.
(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 described in subclause (I), (II), (III),
(IV), or (VI) of section 1182(a)(3)(B)(i) of this title or
section 1227(a)(4)(B) of this title (relating to terrorist
activity), unless, in the case only of an alien described in
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.