Development of the U.S. Asylum System: In Brief

The Immigration and Nationality Act (INA), as originally enacted in 1952, did not address the form of humanitarian protection known as asylum. Asylum provisions were first added to the INA by the Refugee Act of 1980, but they were not a primary focus of that act. Instead, that measure focused on the U.S. admission and resettlement of foreign nationals who had applied for refugee status and been approved abroad. Among other provisions, the Refugee Act included a definition of a “refugee” as a person who was generally outside their country of nationality and was unable or unwilling to return to 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. The original INA asylum provisions (INA §208) comprised three short paragraphs. The first directed the U.S. Attorney General to establish asylum application procedures for foreign nationals who were physically present in the United States or were arriving at a land border or port of entry, regardless of their immigration status, and gave the Attorney General discretionary authority to grant asylum to persons who met the newly added INA definition of a refugee. The second paragraph allowed for the termination of asylum status in certain circumstances. The third provided for the granting of asylum status to the spouse and children of a principal applicant granted asylum. The Refugee Act also provided for persons granted refugee status and asylum (asylees) to become U.S. lawful permanent residents (LPRs) through the adjustment of status process. The asylee adjustment of status provisions granted the Attorney General discretionary authority to grant LPR status to a person who had been physically present in the United States for at least one year after being granted asylum and met other requirements. Laws enacted in the 1990s revised INA asylum-related provisions and added new provisions. The Violent Crime Control and Law Enforcement Act of 1994 added a new provision to Section 208 stating that an asylum applicant could be granted employment authorization by regulation at the Attorney General’s discretion. Two years later, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 overhauled the U.S. asylum system. It amended INA Section 208 to, among other changes, add new restrictions on applying for and receiving asylum. It established a new immigration enforcement mechanism known as expedited removal, which required certain asylum seekers to show that they had a credible fear of persecution in order to pursue an asylum application—or be subject to removal without any further hearings or review. IIRIRA also added a new provision on withholding of removal to the INA, which provided that the Attorney General could not remove a foreign national to a country if the Attorney General decided that the person’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion, subject to specified exceptions. Subsequent laws made further changes to the INA provisions on asylum and withholding of removal. The Real ID Act of 2005 amended Section 208’s language on conditions for granting asylum to add “burden of proof” provisions and to set forth standards for making a determination about an applicant’s credibility. It similarly added language on burden of proof and credibility determinations to the withholding of removal provision. Most recently, P.L. 119-21 amended INA Section 208 to mandate the imposition of fees for asylum applications and related applications and, separate from the INA, set various additional asylum-related fees.