Asylum Process in Immigration Courts and Selected Trends

Immigration law permits aliens (foreign nationals) to apply for asylum if they are present in the United States or have arrived at a port of entry, irrespective of their immigration status. Individuals charged with an immigration violation by the U.S. Department of Homeland Security (DHS) may be placed in removal proceedings in immigration court within the U.S. Department of Justice’s (DOJ’s) Executive Office for Immigration Review (EOIR). Aliens in removal proceedings may apply for asylum as a defense against removal, referred to as defensive asylum. Defensive asylum applications are adjudicated by EOIR’s immigration judges. Individuals may qualify for asylum if they are unable or unwilling to return to their 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. Generally, an individual must apply for asylum within one year of arrival in the United States. In recent years, the Biden Administration and second Trump Administration have implemented restrictions on eligibility for asylum for certain migrants arriving at the southern border. Persons 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. Some individuals who are not eligible for asylum may be granted other types of protection, including withholding of removal and protection under the United Nations Convention Against Torture. In recent years, the number of asylum applications filed in immigration courts have reached record high levels (since at least FY1996, the earliest publicly available data), with more than 897,000 defensive applications filed in FY2024 and about 831,000 filed in FY2025. At the end of FY2025, more than 2.4 million asylum applications were pending in immigration courts. This level of asylum applications (the adjudication of which is a subset of all removal proceedings) presents considerable adjudication challenges for immigration courts.