Introduction

Under the Immigration and Nationality Act (INA), foreign nationals (aliens, as termed in immigration law)¹ who are present in the United States, or who arrive in the United States at a port of entry (POE) or between POEs, may apply for asylum irrespective of their immigration status.² Individuals who reside unlawfully in the United States, who arrive in the United States at a POE and are inadmissible, or who cross illegally into the United States between POEs may be charged with an immigration violation by the Department of Homeland Security (DHS) and placed in removal proceedings in immigration court. In these instances, individuals may apply for asylum as a defense against removal, referred to as defensive asylum, during their proceedings. By contrast, individuals seeking asylum in the United States who are not in removal proceedings may apply for affirmative asylum with DHS's U.S. Citizenship and Immigration Services (USCIS).³

During removal proceedings, immigration judges (IJs) determine whether foreign nationals charged with an immigration violation are removable and adjudicate certain applications for relief or protection from removal, including asylum. Immigration courts are within the Executive Office for Immigration Review (EOIR), a Department of Justice (DOJ) agency. Individuals may qualify for asylum if they are unable or unwilling to return to their home country because of persecution or a well-founded fear of persecution based on one of five protected grounds—race, religion, nationality, political opinion, or membership in a particular social group—and satisfy other requirements.⁴ Those granted asylum, and their spouses and minor children, may remain in the United States and apply for work authorization. After one year of physical presence in the United States, they may apply to adjust to lawful permanent resident (LPR) status.

In recent years, the number of asylum applications filed has generally increased. In FY2022, EOIR received 230,389 defensive asylum applications, the largest annual number of filings since at least FY1996 (the earliest available data). At the end of the first quarter (Q1) of FY2023, 749,133 total asylum applications were pending in immigration courts.⁵ This included both defensive asylum applications originally filed in immigration courts (570,358) as well as affirmative asylum applications that USCIS has referred to EOIR (178,775).⁶ In general, immigration courts are contending with the highest levels of removal cases in EOIR's 40-year history amid unprecedented levels of international migration to the U.S.-Mexico border and the postponement of certain hearings during the COVID-19 pandemic.⁷

Overview and Processes

Expedited and Formal Removal

Foreign nationals may be subject to removal from the United States when DHS charges them with one or more grounds of inadmissibility⁸ or deportability,⁹ either at the U.S. border or within the interior of the country. Under the INA, both expedited and formal removal processes allow a removable alien to seek asylum; each requires different processes for doing so.¹⁰

Under expedited removal, DHS may remove certain migrants "without further hearing or review."¹¹ At present, expedited removal applies to inadmissible aliens arriving at a POE and those apprehended within 100 miles of the U.S. land border within two weeks of arrival. Individuals subject to expedited removal who express an intent to apply for asylum or a fear of persecution in their countries may have their claim reviewed by a USCIS asylum officer during a credible fear interview.

To establish a credible fear of persecution, the individual must establish that they have a "significant possibility" of establishing asylum eligibility—that is, a "substantial and realistic possibility of succeeding" in a hearing before an IJ.¹² Individuals who receive a negative credible fear determination may request that an IJ review the determination. Those who fail to demonstrate a credible fear are typically removed by DHS's Immigration and Customs Enforcement (ICE).

DHS may process those determined to have a credible fear of persecution into one of two pathways: an Asylum Merits Interview (AMI) with USCIS, or formal removal proceedings in immigration court. The AMI is a new process introduced in a DHS-DOJ interim final rule (IFR), which went into effect on May 31, 2022.¹³ The IFR allows asylum officers to adjudicate asylum applications in the first instance in a nonadversarial interview rather than placing migrants in formal removal proceedings.¹⁴ DHS is implementing this process in a phased manner; it is not widespread.¹⁵ As of December 2022, USCIS had referred 978 credible fear claimants for an AMI.¹⁶

Most individuals who demonstrate a credible fear enter formal removal proceedings in EOIR's immigration courts, where they may pursue applications for relief from removal, including asylum. At the end of FY2023 Q1, approximately 215,500 (11.5%) of the nearly 1.87 million total removal cases pending with EOIR had originated from credible fear claims.¹⁷ DHS may also place a migrant directly into formal removal proceedings (i.e., without processing them for expedited removal) if the individual is not subject to expedited removal or at the agency's discretion.

Formal removal proceedings begin after DHS issues a Notice to Appear (NTA) charging document and files it in immigration court.¹⁸ During removal proceedings, attorneys from ICE's Office of the Principal Legal Advisor (OPLA) represent DHS. The migrant, or respondent, may represent himself or herself or obtain counsel at his or her own expense or pro bono. Under the INA, the federal government generally may not appoint counsel for respondents in removal proceedings.¹⁹

Removal proceedings usually consist of multiple hearings before an IJ. If a respondent has received written notice of a hearing and does not attend it, the IJ must order the individual removed in absentia (in the respondent's absence).²⁰ During an initial master calendar hearing, an IJ explains the respondent's rights, the charges against the respondent, and the nature of the proceedings; verifies the respondent's contact information; provides information about legal representation; and sets filing dates for applications and written documents. The IJ must advise the respondent that he or she will be ineligible for any immigration benefits under the INA if the respondent knowingly files a "frivolous" asylum application.²¹ Criteria for a frivolous application are set in federal regulations and generally are based on fabricated material elements.²²

In the next stage of removal proceedings, the IJ schedules a merits hearing (also called an individual calendar hearing), an evidentiary hearing in which the IJ considers challenges to removability and the respondent's application(s) for relief.²³ During the merits hearing, parties may present testimony, evidence, and witnesses. The respondent and any witnesses may be examined and cross-examined, respectively, by their counsel (if applicable) and OPLA counsel, as well as questioned by the IJ. For some cases, there may be multiple master calendar hearings and/or merits hearings. At the conclusion of proceedings, the IJ issues a decision determining whether the respondent is granted relief or ordered removed.²⁴

During removal proceedings, IJs may also temporarily remove cases from their active dockets through administrative closure. Administrative closure allows respondents the opportunity to have their applications for immigration relief resolved by other agencies, such as USCIS.²⁵ IJs may also terminate cases, for example, in response to a party's motion to dismiss charges on the grounds that the respondent is not removable as charged.

Either party may appeal an IJ's decision to the Board of Immigration Appeals (BIA), EOIR's appellate body. The respondent may file a petition for judicial review of a BIA decision with a federal circuit court of appeals.

Asylum, Withholding of Removal, and Protection under the Convention Against Torture

To apply for asylum in formal removal proceedings, the respondent must file Form I-589, Application for Asylum and Withholding of Removal.²⁶ Generally, an individual must apply for asylum within one year of arrival in the United States, with certain exceptions.²⁷ An individual may not apply for asylum if they were previously denied asylum or if they may be removed under a Safe Third Country agreement (i.e., to Canada). The INA also bars certain individuals from being granted asylum in certain circumstances, including those who have persecuted others, committed certain crimes, pose a danger to national security, have engaged in terrorist activity, or have been "firmly resettled in another country prior to arriving in the United States."²⁸

In May 2023, DHS and EOIR issued a final rule that created a "rebuttable presumption of ineligibility" for asylum. The rule applies to applicants arriving at the southwest land border or adjacent coastal borders without valid documents after transiting through another country²⁹ if they did not seek asylum in that third country or avail themselves of certain lawful pathways to enter the United States, such as immigration parole programs available to certain nationals.³⁰ Unaccompanied children are exempt from the presumption. The rule applies to those who enter the United States between May 11, 2023, and May 11, 2025 and is applicable in affirmative and defensive asylum merits adjudications and in credible fear determinations.³¹

Individuals who are ineligible for asylum generally may pursue withholding of removal under the INA, which prohibits the removal of an individual to a country where that person's life or freedom would be threatened based on a protected ground.³² Some individuals are ineligible for both asylum and withholding of removal because they do not qualify for protection under one of the protected grounds or because they are subject to other statutory bars. In such cases, applicants may seek protection under the United Nations Convention Against Torture (CAT), an international treaty provision that protects individuals from return to countries where it is more likely than not that they would be tortured.³³ Withholding of removal under the INA and CAT allow possible removal to a third country; unlike asylum, these forms of protection do not provide a path to LPR status.

Immigration courts also adjudicate asylum applications for individuals in proceeding types other than removal proceedings. Crewmembers, stowaways, and those who have entered under the Visa Waiver Program (VWP)³⁴ are ineligible for removal proceedings and may have their applications adjudicated during asylum-only proceedings.³⁵ Individuals with a reinstated order of removal or expedited removal order based on an aggravated felony conviction may apply for asylum during withholding-only proceedings.³⁶

Selected Trends

Case Receipts and Pending Cases

Immigration courts adjudicate asylum applications first filed as a defense against removal (defensive) as well as applications that were first filed with USCIS and subsequently referred to EOIR (affirmative). Immigration courts have generally received large volumes of defensive asylum applications in recent years (Figure 1), except for FY2021 (likely due to disruptions from the COVID-19 pandemic).³⁷ Defensive asylum filings increased nearly fivefold between FY2014 (31,517) and FY2019 (154,368) and reached approximately 230,000 at the end of FY2022. Examining the last 15 fiscal years of data, the defensive proportion of EOIR's asylum caseload has grown substantially, from 31% of applications filed in FY2008 to 91% in FY2022.

Figure 1. Defensive and Affirmative Applications Filed, FY2008-FY2022

Source: EOIR, "Defensive Asylum Applications" and "Affirmative Asylum Applications," Adjudication Statistics, January 16, 2023. Notes: Defensive cases are those filed with an immigration court. Affirmative cases are cases that originated with USCIS and subsequently were referred to EOIR.

At the end of FY2023 Q1, there were 749,133 pending asylum applications among the approximately 1.87 million total removal cases pending in immigration courts. Although the overall number of pending removal cases has increased since the end of FY2022 (from 1.79 million to 1.87 million), the number of pending asylum applications declined by approximately 5% from the end of FY2022 (786,317) to the end of FY2023 Q1 (Figure 2).

Because individuals seeking asylum in immigration court as a defense against removal generally apply for asylum after DHS files the NTA, the proportion of respondents currently in removal proceedings who file asylum applications may grow over time. For example, DHS filed 706,640 new removal cases in FY2022—a record high. Many of those individuals who intend to seek asylum may have yet to file an application.

The number of asylum applications pending in immigration courts has grown substantially in recent years (Figure 2). From FY2008 to FY2017, the defensive proportion of pending applications increased relative to the affirmative proportion (from 28% in FY2008 to 82% in FY2017). Since then, the proportion of defensive applications has fluctuated slightly but defensive applications have remained the majority of pending asylum applications (76% at the end of FY2023 Q1).

Figure 2. Pending Asylum Applications, FY2008-FY2023 (Q1)

Source: EOIR, "Defensive Asylum Applications" and "Affirmative Asylum Applications," Adjudication Statistics, January 16, 2023. Notes: *FY2023 through Q1 only.

Among all pending asylum applications in immigration courts, approximately 80% of applicants are from the following 10 countries: Guatemala, Honduras, El Salvador, Mexico, Venezuela, Cuba, India, Ecuador, Brazil, and Nicaragua (as of November 2022).

Figure 3. Pending Asylum Applications by Country of Origin (Based on 787,196 applications through November 2022)

Source: Transactional Records Access Clearinghouse (TRAC) at Syracuse University, Asylum Filings through November 2022, accessed February 2, 2023. Notes: Includes defensive and affirmative asylum applications in immigration courts. TRAC obtains EOIR data through requests made under the Freedom of Information Act (FOIA).

Asylum Outcomes in Immigration Courts

EOIR publishes asylum decision rates that include both defensive asylum applications and affirmative asylum applications referred by USCIS, based on a sum of four possible outcomes: grants, denials, administrative closures, and "other" (cases that were abandoned, withdrawn, or not adjudicated), as presented in Table 1.³⁸ Other observers have calculated grant rates based on the number of relief grants divided by the sum of relief grants and denials only.³⁹ Note that some respondents denied asylum may have been granted other forms of relief or protection from removal.

During the last 15 fiscal years (FY2008-FY2022), based on the total sum of outcomes, the annual asylum grant rate has ranged from 14.17% (FY2022) to 31.35% (FY2011), and the denial rate has ranged from 16.74% (FY2022) to 54.49% (FY2020).

The rates of administrative closures and other outcomes also fluctuated during this period, corresponding with shifting agency guidance for this docket management tool (administrative closure) under different administrations.⁴⁰ In FY2022, 56.31% of case outcomes were designated "other," the highest rate during the period examined. This outcome includes terminated and dismissed proceedings,⁴¹ which can occur, for example, because a respondent filed a motion to terminate the proceedings based on substantive or procedural grounds, DHS moved to dismiss charges against the respondent (e.g., as a matter of prosecutorial discretion), or proceedings were dismissed by the IJ (e.g., because DHS failed to file the NTA in immigration court).⁴²

The consequences for an applicant whose asylum outcome is designated "other" may vary. In circumstances in which a case is dismissed or terminated, applicants may be able to remain in the United States. In other instances, an "other" outcome may include cases in which the respondent has withdrawn his or her application for asylum or failed to abide by the deadlines set by the IJ and may be ordered removed.