Asylum Process in Immigration Courts and Selected Trends
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Asylum Process in Immigration Courts and
April 12May 15, 2023 , 2023
Selected Trends
Holly Straut-Eppsteiner
Individuals who reside unlawfully in the United States, who arrive in the United States at a port Individuals who reside unlawfully in the United States, who arrive in the United States at a port
Analyst in Immigration Analyst in Immigration
of entry and are inadmissible, or who cross into the United States illegally between ports of entry of entry and are inadmissible, or who cross into the United States illegally between ports of entry
Policy Policy
may be charged with an immigration violation by the Department of Homeland Security may be charged with an immigration violation by the Department of Homeland Securityand(DHS)
and placed in removal proceedings in immigration court. In these instances, individuals may apply for placed in removal proceedings in immigration court. In these instances, individuals may apply for
asylum during their proceedings as a defense against removal, referred to as asylum during their proceedings as a defense against removal, referred to as defensiveasylum.
asylum. Removal proceedings are adjudicated by immigration judges within the Department of Justice’s Removal proceedings are adjudicated by immigration judges within the Department of Justice’s
Executive Office for Immigration ReviewExecutive Office for Immigration Review (EOIR). .
Individuals may qualify for asylum if they are unable or unwilling to return to their country because of persecution or a well- 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 founded fear of persecution based on one of five protected grounds: race, religion, nationality, political opinion, or
membership in a particular social group. Persons granted asylum, and their spouses and minor children, may remain in the membership in a particular social group. 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 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. adjust to lawful permanent resident (LPR) status. 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 country if they did not seek asylum in that third country or avail themselves of certain lawful pathways to enter the United States. Some individuals who are not eligible for asylum may be granted other Some individuals who are not eligible for asylum may be granted other
types of protection during their proceedings, including withholding of removal and protection under the United Nations types of protection during their proceedings, including withholding of removal and protection under the United Nations
Convention Against Torture. Convention Against Torture.
In recent years, the number of asylum applications filed in immigration courts has generally increased, including 230,389 In recent years, the number of asylum applications filed in immigration courts has generally increased, including 230,389
defensive asylum applications filed in FY2022, the largest annual number since at least FY1996 (the earliest available data). defensive asylum applications filed in FY2022, the largest annual number since at least FY1996 (the earliest available data).
At the end of the first quarter of FY2023, 749,133 asylum applications were pending in immigration courts. At the end of the first quarter of FY2023, 749,133 asylum applications were pending in immigration courts.
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Contents
Introduction ..................................................................................................................................... 1
Overview and Processes .................................................................................................................. 2
Expedited and Formal Removal ................................................................................................ 2
Asylum, Withholding of Removal, and Protection under the Convention Against
Torture .................................................................................................................................... 4
Selected Trends ................................................................................................................................ 5
Case Receipts and Pending Cases ............................................................................................. 5
Asylum Outcomes in Immigration Courts ................................................................................ 7
Figures
Figure 1. Defensive and Affirmative Applications Filed, FY2008-FY2022 ................................... 6
Figure 2. Pending Asylum Applications, FY2008-FY2023 (Q1) .................................................... 7
Figure 3. Pending Asylum Applications by Country of Origin ....................................................... 7
Tables
Table 1. Asylum Outcomes, FY2008-FY2022 ................................................................................ 8
Contacts
Author Information .......................................................................................................................... 9
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Asylum Process in Immigration Courts and Selected Trends
Introduction
Under the Immigration and Nationality Act (INA), foreign nationals (Under the Immigration and Nationality Act (INA), foreign nationals (aliens, as termed in as termed in
immigration law)1 who are present in the United States, or who arrive in the United States at a 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 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 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 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 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 placed in removal proceedings in immigration court. In these instances, individuals may apply for
asylum as a defense against removal, referred to as asylum as a defense against removal, referred to as defensive asylum, during their proceedings. By , during their proceedings. By
contrast, individuals seeking asylum in the United States who are not in removal proceedings may contrast, individuals seeking asylum in the United States who are not in removal proceedings may
apply for apply for affirmative asylum with DHS’s U.S. Citizenship and Immigration Services (USCIS).3 with DHS’s U.S. Citizenship and Immigration Services (USCIS).3
During removal proceedings, immigration judges (IJs) determine whether foreign nationals During removal proceedings, immigration judges (IJs) determine whether foreign nationals
charged with an immigration violation are removable and adjudicate certain applications for relief 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 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 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 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, 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 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 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 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. 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, 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 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, 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 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 defensive asylum applications originally filed in immigration courts (570,358) as well as
affirmativeaffirmative asylum applications that USCIS has referred to EOIR (178,775).6asylum applications that USCIS has referred to EOIR (178,775).6 In general, In general,
immigration courts are contending with the highest levels of removal cases in EOIR’s 40-year 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 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 postponement of certain hearings during the COVID-19 pandemic.7
1 The INA defines an 1 The INA defines an alien as a person who is not a citizen or a national of the United States. See INA §101(a)(3). as a person who is not a citizen or a national of the United States. See INA §101(a)(3).
2 INA §208(a); 8 U.S.C. §1158(a). 2 INA §208(a); 8 U.S.C. §1158(a).
3 For more information on asylum generally, including affirmative asylum, see CRS Report R45539, 3 For more information on asylum generally, including affirmative asylum, see CRS Report R45539, Immigration: U.S.
Asylum Policy. .
4 INA §208(b)(B)(i); 8 U.S.C. §1158(b)(B)(i). 4 INA §208(b)(B)(i); 8 U.S.C. §1158(b)(B)(i).
5 EOIR, “Total Asylum Applications,” Adjudication Statistics, January 16, 2023. 5 EOIR, “Total Asylum Applications,” Adjudication Statistics, January 16, 2023.
6 USCIS refers cases to EOIR when it finds an applicant ineligible for asylum and the applicant does not have a lawful 6 USCIS refers cases to EOIR when it finds an applicant ineligible for asylum and the applicant does not have a lawful
status. status.
7 For more information, see CRS Report R47077, 7 For more information, see CRS Report R47077, U.S. Immigration Courts and the Pending Cases Backlog. .
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Overview and Processes
Expedited and Formal Removal
Foreign nationals may be subject to removal from the United States when DHS charges them 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 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 the interior of the country. Under the INA, both expedited and and formal removal processes allow a removal processes allow a
removable alien to seek asylum; each requires different processes for doing so.10 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 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 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. 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 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 persecution in their countries may have their claim reviewed by a USCIS asylum officer during a
credible fear interview. credible fear interview.
To establish a credible fear of persecution, the individual must establish that they have a 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 “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 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 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 demonstrate a credible fear are typically removed by DHS’s Immigration and Customs
Enforcement (ICE). Enforcement (ICE).
DHS may process those determined to have a credible fear of persecution into one of two DHS may process those determined to have a credible fear of persecution into one of two
pathways: an pathways: an Asylum Merits Interview (AMI) with USCIS, or formal removal proceedings in (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), 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 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 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 formal removal proceedings.14 DHS is implementing this process in a phased manner; it is not
8 INA §212; 8 U.S.C. §1182. 8 INA §212; 8 U.S.C. §1182.
9 INA §237; 8 U.S.C. §1227. 9 INA §237; 8 U.S.C. §1227.
10 In March 2020, in response to the COVID-19 pandemic, the Centers for Disease Control and Prevention (CDC) 10 In March 2020, in response to the COVID-19 pandemic, the Centers for Disease Control and Prevention (CDC)
invoked authority under Title 42 of the U.S. Code to limit the entry of certain foreign nationals, including those invoked authority under Title 42 of the U.S. Code to limit the entry of certain foreign nationals, including those
intending to apply for asylum and other humanitarian protections. Title 42 expulsions by DHS are not removal intending to apply for asylum and other humanitarian protections. Title 42 expulsions by DHS are not removal
procedures under the INA and they do not involve immigration courts. For more information on Title 42, see CRS procedures under the INA and they do not involve immigration courts. For more information on Title 42, see CRS
Report R47343, Report R47343, U.S. Border Patrol Apprehensions and Title 42 Expulsions at the Southwest Border: Fact Sheet. .
11 Expedited removal was established under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 11 Expedited removal was established under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(P.L. 104-208, Div. C), codified at INA §235(b)(1). For more information about expedited removal, see CRS In Focus (P.L. 104-208, Div. C), codified at INA §235(b)(1). For more information about expedited removal, see CRS In Focus
IF11357, IF11357, Expedited Removal of Aliens: An Introduction and CRS Report R45314, and CRS Report R45314, Expedited Removal of Aliens: Legal
Framework. .
12 See Refugee, Asylum, and International Operations Directorate Officer Training Asylum Division Officer Training 12 See Refugee, Asylum, and International Operations Directorate Officer Training Asylum Division Officer Training
Course, USCIS, February 13, 2017, https://www.aila.org/infonet/raio-and-asylum-division-officer-training-course Course, USCIS, February 13, 2017, https://www.aila.org/infonet/raio-and-asylum-division-officer-training-course
(citing(citing Holmes v. Amerex Rent-a-Car, 180 F.3d 294, 297 (D.C. Cir. 1999))180 F.3d 294, 297 (D.C. Cir. 1999)).
13 DHS and EOIR, “Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, 13 DHS and EOIR, “Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal,
and CAT Protection Claims by Asylum Officers,” 87 and CAT Protection Claims by Asylum Officers,” 87 Federal Register 18078-18226. For more information about the 18078-18226. For more information about the
IFR, see CRS In Focus IF12162, IFR, see CRS In Focus IF12162, Federal Agency Rule Expands Asylum Officers’ Authority. .
14 If the asylum claim is denied, the applicant may be considered for withholding of removal under the INA and 14 If the asylum claim is denied, the applicant may be considered for withholding of removal under the INA and
protection under the Convention Against Torture (CAT). The applicant may also request a de novo review of the denial protection under the Convention Against Torture (CAT). The applicant may also request a de novo review of the denial
and have their asylum application adjudicated by an IJ in and have their asylum application adjudicated by an IJ in streamlined removal proceedings. .
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widespread.15 As of December 2022, USCIS had referred 978 credible fear claimants for an widespread.15 As of December 2022, USCIS had referred 978 credible fear claimants for an
AMI.16 AMI.16
Most individuals who demonstrate a credible fear enter formal removal proceedings in EOIR’s 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 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 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 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 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 expedited removal) if the individual is not subject to expedited removal or at the agency’s
discretion. discretion.
Formal removal proceedings begin after DHS issues a Notice to Appear (NTA) charging 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 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 Office of the Principal Legal Advisor (OPLA) represent DHS. The migrant, or respondent, may , may
represent himself or herself or obtain counsel at his or her own expense or pro bono. Under the 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 INA, the federal government generally may not appoint counsel for respondents in removal
proceedings.19 proceedings.19
Removal proceedings usually consist of multiple hearings before an IJ. If a respondent has 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 received written notice of a hearing and does not attend it, the IJ must order the individual
removed removed in absentia (in the respondent’s absence).20 During an initial master calendar hearing, an (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 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 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 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 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 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 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 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 individual calendar hearing), an evidentiary hearing in which the IJ considers challenges to
15 The IFR applies to adults and families placed in expedited removal proceedings after May 31, 2022; currently, only 15 The IFR applies to adults and families placed in expedited removal proceedings after May 31, 2022; currently, only
those who indicate an intention of residing in Boston, Los Angeles, Miami, New York, Newark, or San Francisco may those who indicate an intention of residing in Boston, Los Angeles, Miami, New York, Newark, or San Francisco may
be referred for an AMI. DHS stated that as of May 31, 2022, it would “aim to refer approximately a few hundred be referred for an AMI. DHS stated that as of May 31, 2022, it would “aim to refer approximately a few hundred
noncitizens each month to USCIS” for an AMI. See USCIS, “Fact Sheet: Implementation of the Credible Fear and noncitizens each month to USCIS” for an AMI. See USCIS, “Fact Sheet: Implementation of the Credible Fear and
Asylum Processing Interim Final Rule,” https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/fact-sheet-Asylum Processing Interim Final Rule,” https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/fact-sheet-
implementation-of-the-credible-fear-and-asylum-processing-interim-final-rule. implementation-of-the-credible-fear-and-asylum-processing-interim-final-rule.
16 DHS, “Asylum Processing Rule Cohort Reports,” https://www.dhs.gov/immigration-statistics/special-reports/ 16 DHS, “Asylum Processing Rule Cohort Reports,” https://www.dhs.gov/immigration-statistics/special-reports/
asylum-processing-rule-report. asylum-processing-rule-report.
17 EOIR, “Pending I-862 Proceedings Originating With a Credible Fear Claim and All Pending I-862s,” Adjudication 17 EOIR, “Pending I-862 Proceedings Originating With a Credible Fear Claim and All Pending I-862s,” Adjudication
Statistics, January 16, 2023. Statistics, January 16, 2023.
18 INA §240; 8 U.S.C. §1229a. For more information, see CRS In Focus IF11536, 18 INA §240; 8 U.S.C. §1229a. For more information, see CRS In Focus IF11536, Formal Removal Proceedings: An
Introduction and CRS Infographic IG10022, and CRS Infographic IG10022, Immigration Court Proceedings: Process and Data. .
19 INA §240(b)(4); 8 U.S.C. §1229a(b)(4). For more information, see CRS In Focus IF12158, 19 INA §240(b)(4); 8 U.S.C. §1229a(b)(4). For more information, see CRS In Focus IF12158, U.S. Immigration Courts:
Access to Counsel in Removal Proceedings and Legal Access Programs. .
20 The removal order may be rescinded if a respondent files a motion to reopen proceedings and demonstrates that the 20 The removal order may be rescinded if a respondent files a motion to reopen proceedings and demonstrates that the
failure to appear occurred because he or she did not receive proper notice of the hearing, faced “exceptional failure to appear occurred because he or she did not receive proper notice of the hearing, faced “exceptional
circumstances,” or was in custody and unable to appear through no fault of his or her own. For more information, see circumstances,” or was in custody and unable to appear through no fault of his or her own. For more information, see
CRS In Focus IF11892, CRS In Focus IF11892, At What Rate Do Noncitizens Appear for Their Removal Hearings? Measuring In Absentia
Removal Order Rates. .
21 INA §208(d)(4)(A), INA §208(d)(6). 21 INA §208(d)(4)(A), INA §208(d)(6).
22 8 C.F.R. §208.20. 22 8 C.F.R. §208.20.
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removability and the respondent’s application(s) for relief.23 During the merits hearing, parties 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 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, 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 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 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 whether the respondent is granted relief or ordered removed.24
During removal proceedings, IJs may also temporarily remove cases from their active dockets During removal proceedings, IJs may also temporarily remove cases from their active dockets
through through administrative closure. Administrative closure allows respondents the opportunity to . Administrative closure allows respondents the opportunity to
have their applications for immigration relief resolved by other agencies, such as USCIS.25 IJs have their applications for immigration relief resolved by other agencies, such as USCIS.25 IJs
may also may also terminate cases, for example, in response to a party’s motion to dismiss charges on the cases, for example, in response to a party’s motion to dismiss charges on the
grounds that the respondent is not removable as charged. 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 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 appellate body. The respondent may file a petition for judicial review of a BIA decision with a
federal circuit court of appeals. 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, 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 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 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 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 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, 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 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 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 23 In addition to asylum and the forms of relief explained in this report, respondents may pursue other forms of relief in 23 In addition to asylum and the forms of relief explained in this report, respondents may pursue other forms of relief in
removal proceedings, such as cancellation of removal. Respondents may also pursue certain types of immigration removal proceedings, such as cancellation of removal. Respondents may also pursue certain types of immigration
benefits with USCIS, such as adjustment to LPR status based on a qualifying family relationship. Others may seek benefits with USCIS, such as adjustment to LPR status based on a qualifying family relationship. Others may seek
voluntary departure from the United States. For a comprehensive list of common types of protection and relief from voluntary departure from the United States. For a comprehensive list of common types of protection and relief from
removal, see CRS Report R47077, removal, see CRS Report R47077, U.S. Immigration Courts and the Pending Cases Backlog, Table 3. , Table 3.
24 Requirements for designating a country of removal are at INA §241(b); 8 U.S.C. §1231(b). See also Adam L. 24 Requirements for designating a country of removal are at INA §241(b); 8 U.S.C. §1231(b). See also Adam L.
Fleming, “Around the World in the INA: Designating a Country of Removal in Immigration Proceedings,” Fleming, “Around the World in the INA: Designating a Country of Removal in Immigration Proceedings,”
Immigration Law Advisor, May 2013. , May 2013.
25 For more information about administrative closure, including its use under different administrations, see “Docket 25 For more information about administrative closure, including its use under different administrations, see “Docket
Management and Administrative Closure” in CRS Report R47077, Management and Administrative Closure” in CRS Report R47077, U.S. Immigration Courts and the Pending Cases
Backlog. .
26 Even if an applicant has undergone a credible fear interview with USCIS during expedited removal, they must apply 26 Even if an applicant has undergone a credible fear interview with USCIS during expedited removal, they must apply
for asylum once in formal removal proceedings. Form I-589 may also be used to apply for withholding of removal and for asylum once in formal removal proceedings. Form I-589 may also be used to apply for withholding of removal and
protection under CAT. Those individuals granted an AMI with USCIS do not file an I-589; instead, the record of the protection under CAT. Those individuals granted an AMI with USCIS do not file an I-589; instead, the record of the
credible fear determination serves as the asylum application. credible fear determination serves as the asylum application.
27 There are exceptions for applicants with changed circumstances that materially affect their eligibility for asylum, 27 There are exceptions for applicants with changed circumstances that materially affect their eligibility for asylum,
applicants with extraordinary circumstances relating to the delay in filing an application, and unaccompanied children. applicants with extraordinary circumstances relating to the delay in filing an application, and unaccompanied children.
See INA §208(a)(2)(B). See INA §208(a)(2)(B).
28 INA §208(b)(2)(A)(vi); 8 U.S.C. §1158 (b)(2)(A)(vi). For more information, see CRS Legal Sidebar LSB10815, 28 INA §208(b)(2)(A)(vi); 8 U.S.C. §1158 (b)(2)(A)(vi). For more information, see CRS Legal Sidebar LSB10815, An
Overview of the Statutory Bars to Asylum: Limitations on Applying for Asylum (Part One) and CRS Legal Sidebar and CRS Legal Sidebar
LSB10816, LSB10816, An Overview of the Statutory Bars to Asylum: Limitations on Granting Asylum (Part Two). .
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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 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 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.freedom would be threatened based on a protected ground.2932 Some individuals are ineligible for Some individuals are ineligible for
both asylum and withholding of removal because they do not qualify for protection under one of 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 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 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 international treaty provision that protects individuals from return to countries where it is more
likely than not that they would be tortured.likely than not that they would be tortured.3033 Withholding of removal under the INA and CAT Withholding of removal under the INA and CAT
allow possible removal to a third country; unlike asylum, these forms of protection do not provide allow possible removal to a third country; unlike asylum, these forms of protection do not provide
a path to LPR status. a path to LPR status.
Immigration courts also adjudicate asylum applications for individuals in proceeding types other 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 than removal proceedings. Crewmembers, stowaways, and those who have entered under the Visa
Waiver Program (VWP)Waiver Program (VWP)3134 are ineligible for removal proceedings and may have their applications are ineligible for removal proceedings and may have their applications
adjudicated during adjudicated during asylum-only proceedings..3235 Individuals with a reinstated order of removal or Individuals with a reinstated order of removal or
expedited removal order based on an aggravated felony conviction may apply for asylum during expedited removal order based on an aggravated felony conviction may apply for asylum during
withholding-only proceedings..3336
Selected Trends
Case Receipts and Pending Cases
Immigration courts adjudicate asylum applications first filed as a defense against removal 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 ) as well as applications that were first filed with USCIS and subsequently referred to
EOIR (EOIR (affirmative). Immigration courts have generally received large volumes of defensive ). Immigration courts have generally received large volumes of defensive
asylum applications in recent years asylum applications in recent years (Figure 1), except for FY2021 (likely due to disruptions from , except for FY2021 (likely due to disruptions from
the COVID-19 pandemic).the COVID-19 pandemic).3437 Defensive asylum filings increased nearly fivefold between FY2014 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.
29 INA §241(b)(3); 8 U.S.C. §1231(b)(3).
30 8 C.F.R. §208.16; 8 C.F.R. §208.18.
31 For more information, see CRS Report RL32221, Visa Waiver Program.
32 8 C.F.R. §208.2.
33
29 Other than the applicant’s country of citizenship, nationality, or, if stateless, last residence. 30 These nationals are Cubans, Haitians, Nicaraguans, and Venezuelans. For more information, see DHS, “Processes for Cubans, Haitians, Nicaraguans, and Venezuelans,” https://www.uscis.gov/CHNV.
31 DHS and EOIR, “Circumvention of Lawful Pathways,” unpublished rule (scheduled to be published in the Federal Register on May 16, 2023), https://www.federalregister.gov/public-inspection/2023-10146/circumvention-of-lawful-pathways. For more information, see CRS Legal Sidebar LSB10961, The Biden Administration’s Final Rule on Arriving Aliens Seeking Asylum.
32 INA §241(b)(3); 8 U.S.C. §1231(b)(3). 33 8 C.F.R. §208.16; 8 C.F.R. §208.18. 34 For more information, see CRS Report RL32221, Visa Waiver Program. 35 8 C.F.R. §208.2. 36 EOIR, EOIR, Immigration Court Practice Manual, Chapter 7.4, “Limited Proceedings.” The EOIR data presented in this , Chapter 7.4, “Limited Proceedings.” The EOIR data presented in this
report generally include all of these case types. For more information, see CRS In Focus IF11736, report generally include all of these case types. For more information, see CRS In Focus IF11736, Reinstatement of
Removal: An Introduction. .
3437 In FY2021, nearly two-thirds (63%) of migrant encounters with the U.S. Border Patrol resulted in expulsions under In FY2021, nearly two-thirds (63%) of migrant encounters with the U.S. Border Patrol resulted in expulsions under
the Title 42 public health authority, which does not allow a process to apply for asylum. See CRS Report R47343, U.S.
Border Patrol Apprehensions and Title 42 Expulsions at the Southwest Border: Fact Sheet.
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(continued...) Congressional Research Service 5 link to page 10 link to page 10 Asylum Process in Immigration Courts and Selected Trends (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, EOIR, “Defensive Asylum Applications” and “Affirmative Asylum Applications,” Adjudication Statistics,
January 16, 2023. January 16, 2023.
Notes: : Defensive cases are those filed with an immigration court. cases are those filed with an immigration court. Affirmative cases are cases that originated with cases are cases that originated with
USCIS and subsequently were referred to EOIR. USCIS and subsequently were referred to EOIR.
At the end of FY2023 Q1, there were 749,133 pending asylum applications among the 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 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 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 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 Q5% 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 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 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 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 new removal cases in FY2022—a record high. Many of those individuals who intend to seek
asylum may have yet to file an application. asylum may have yet to file an application.
The number of asylum applications pending in immigration courts has grown substantially in The number of asylum applications pending in immigration courts has grown substantially in
recent yearrecent years (Figure 2). From FY2008 to FY2017, the defensive proportion of pending . From FY2008 to FY2017, the defensive proportion of pending
applications increased relative to the affirmative proportion (from 28% in FY2008 to 82% in 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 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 defensive applications have remained the majority of pending asylum applications (76% at the
end of FY2023 Q1). end of FY2023 Q1).
the Title 42 public health authority, which does not allow a process to apply for asylum. See CRS Report R47343, U.S. Border Patrol Apprehensions and Title 42 Expulsions at the Southwest Border: Fact Sheet. Congressional Research Service Congressional Research Service
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Asylum Process in Immigration Courts and Selected Trends
Figure 2. Pending Asylum Applications, FY2008-FY2023 (Q1)
Source: EOIR, “Defensive Asylum Applications” and “Affirmative Asylum Applications,” Adjudication Statistics, EOIR, “Defensive Asylum Applications” and “Affirmative Asylum Applications,” Adjudication Statistics,
January 16, 2023. January 16, 2023.
Notes: *FY2023 through Q1 only. : *FY2023 through Q1 only.
Among all pending asylum applications in immigration courts, approximately 80% of applicants Among all pending asylum applications in immigration courts, approximately 80% of applicants
are from the following 10 countries: Guatemala, Honduras, El Salvador, Mexico, Venezuela, are from the following 10 countries: Guatemala, Honduras, El Salvador, Mexico, Venezuela,
Cuba, India, Ecuador, Brazil, and Nicaragua (as of November 2022). 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) (Based on 787,196 applications through November 2022)
Source: Transactional Records Access Clearinghouse (TRAC) at Syracuse University, Asylum Filings through Transactional Records Access Clearinghouse (TRAC) at Syracuse University, Asylum Filings through
November 2022, accessed February 2, 2023. November 2022, accessed February 2, 2023.
Notes: Includes defensive and affirmative asylum applications in immigration courts. TRAC obtains EOIR data Includes defensive and affirmative asylum applications in immigration courts. TRAC obtains EOIR data
through requests made under the Freedom of Information Act (FOIA). 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 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: 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 grants, denials, administrative closures, and “other” (cases that were abandoned, withdrawn, or
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not adjudicated), as presented i not adjudicated), as presented in Table 1.3538 Other observers have calculated grant rates based on Other observers have calculated grant rates based on
the number of relief grants divided by the sum of relief grants and denials only.the number of relief grants divided by the sum of relief grants and denials only.3639 Note that some Note that some
respondents denied asylum may have been granted other forms of relief or protection from respondents denied asylum may have been granted other forms of relief or protection from
removal. removal.
During the last 15 fiscal years (FY2008-FY2022), based on the total sum of outcomes, the annual 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 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). ranged from 16.74% (FY2022) to 54.49% (FY2020).
The rates of administrative closures and other outcomes also fluctuated during this period, The rates of administrative closures and other outcomes also fluctuated during this period,
corresponding with shifting agency guidance for this docket management tool (administrative corresponding with shifting agency guidance for this docket management tool (administrative
closure) under different administrations.closure) under different administrations.3740 In FY2022, 56.31% of case outcomes were designated In FY2022, 56.31% of case outcomes were designated
“other,” the highest rate during the period examined. This outcome includes terminated and “other,” the highest rate during the period examined. This outcome includes terminated and
dismissed proceedings,dismissed proceedings,3841 which can occur, for example, because a respondent filed a motion to 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 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 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).dismissed by the IJ (e.g., because DHS failed to file the NTA in immigration court).3942
The consequences for an applicant whose asylum outcome is designated “other” may vary. In 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 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 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 has withdrawn his or her application for asylum or failed to abide by the deadlines set by the IJ
and may be ordered removed.and may be ordered removed.
Table 1. Asylum Outcomes, FY2008-FY2022
Administrative
“Other”
Total
Fiscal Year
Grant Rate
Denial Rate
Closure Rate
Rate
Outcomes
2008 2008
23.66% 23.66%
31.15% 31.15%
6.37% 6.37%
38.82% 38.82%
36,903 36,903
2009 2009
23.92% 23.92%
28.48% 28.48%
6.37% 6.37%
41.23% 41.23%
34,717 34,717
2010 2010
25.34% 25.34%
25.95% 25.95%
10.26% 10.26%
38.45% 38.45%
32,230 32,230
2011 2011
31.35% 31.35%
29.70% 29.70%
4.55% 4.55%
34.40% 34.40%
31,350 31,350
2012 2012
30.55% 30.55%
24.95% 24.95%
14.25% 14.25%
30.25% 30.25%
34,114 34,114
2013 2013
24.93% 24.93%
22.73% 22.73%
25.32% 25.32%
27.03% 27.03%
38,799 38,799
2014 2014
22.85% 22.85%
24.67% 24.67%
25.42% 25.42%
27.07% 27.07%
37,398 37,398
2015 2015
18.70% 18.70%
20.36% 20.36%
35.61% 35.61%
25.33% 25.33%
43,178 43,178
35
38 Asylum outcomes for cases originating with a credible fear claim, specifically, are available from EOIR; see EOIR, Asylum outcomes for cases originating with a credible fear claim, specifically, are available from EOIR; see EOIR,
“Asylum Decision Rates in Cases Originating with a Credible Fear Claim,” https://www.justice.gov/eoir/workload-and-“Asylum Decision Rates in Cases Originating with a Credible Fear Claim,” https://www.justice.gov/eoir/workload-and-
adjudication-statistics. adjudication-statistics.
3639 See, for example, Transactional Records Access Clearinghouse (TRAC) at Syracuse University, “Speeding Up the See, for example, Transactional Records Access Clearinghouse (TRAC) at Syracuse University, “Speeding Up the
Asylum Process Leads to Mixed Results,” November 29, 2022, https://trac.syr.edu/reports/703/. Asylum Process Leads to Mixed Results,” November 29, 2022, https://trac.syr.edu/reports/703/.
3740 For more information, see the “Docket Management and Administrative Closure” section in CRS Report R47077, For more information, see the “Docket Management and Administrative Closure” section in CRS Report R47077,
U.S. Immigration Courts and the Pending Cases Backlog. .
3841 Among all removal case initial decisions in FY2022 (not specific to asylum), 15% were terminated and 36% were Among all removal case initial decisions in FY2022 (not specific to asylum), 15% were terminated and 36% were
dismissed. See EOIR, “FY2022 Decision Outcomes,” October 13, 2022. dismissed. See EOIR, “FY2022 Decision Outcomes,” October 13, 2022.
3942 In some cases, DHS may choose to dismiss charges against a respondent whom they do not consider a priority for In some cases, DHS may choose to dismiss charges against a respondent whom they do not consider a priority for
enforcement. For more information, see CRS Legal Sidebar LSB10578, enforcement. For more information, see CRS Legal Sidebar LSB10578, The Biden Administration’s Immigration
Enforcement Priorities: Background and Legal Considerations. For more information on DHS failures to file NTAs in . For more information on DHS failures to file NTAs in
immigration court, see CRS Insight IN12046, immigration court, see CRS Insight IN12046, Migrant Arrivals at the Southwest Border: Challenges for Immigration
Courts. .
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Asylum Process in Immigration Courts and Selected Trends
2016 2016
15.81% 15.81%
21.37% 21.37%
39.40% 39.40%
23.42% 23.42%
54,706 54,706
2017 2017
19.66% 19.66%
32.83% 32.83%
20.32% 20.32%
27.19% 27.19%
53,533 53,533
2018 2018
20.69% 20.69%
41.75% 41.75%
3.29% 3.29%
34.26% 34.26%
63,479 63,479
2019 2019
20.62% 20.62%
49.55% 49.55%
0.14% 0.14%
29.68% 29.68%
91,451 91,451
2020 2020
19.13% 19.13%
54.49% 54.49%
0.63% 0.63%
25.75% 25.75%
76,113 76,113
2021 2021
16.06% 16.06%
30.64% 30.64%
6.36% 6.36%
46.94% 46.94%
46,071 46,071
2022 2022
14.17% 14.17%
16.74% 16.74%
12.77% 12.77%
56.31% 56.31%
158,199 158,199
Source: EOIR, “Asylum Decision Rates,” Adjudication Statistics, January 16, 2023. EOIR, “Asylum Decision Rates,” Adjudication Statistics, January 16, 2023.
Notes: Grant, Denial, Administrative Closure, and “Other” rates are calculated as the sum of those outcomes Grant, Denial, Administrative Closure, and “Other” rates are calculated as the sum of those outcomes
for each fiscal year divided by the total outcomes for the fiscal year. for each fiscal year divided by the total outcomes for the fiscal year.
Author Information
Holly Straut-Eppsteiner Holly Straut-Eppsteiner
Analyst in Immigration Policy Analyst in Immigration Policy
Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in than public understanding of information that has been provided by CRS to Members of Congress in
connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not
subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in
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R47504 R47504 · VERSION1 · NEW2 · UPDATED
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Selected Trends
Holly Straut-Eppsteiner
Individuals who reside unlawfully in the United States, who arrive in the United States at a port Individuals who reside unlawfully in the United States, who arrive in the United States at a port
Analyst in Immigration Analyst in Immigration
of entry and are inadmissible, or who cross into the United States illegally between ports of entry of entry and are inadmissible, or who cross into the United States illegally between ports of entry
Policy Policy
may be charged with an immigration violation by the Department of Homeland Security may be charged with an immigration violation by the Department of Homeland Security
and placed in removal proceedings in immigration court. In these instances, individuals may apply for placed in removal proceedings in immigration court. In these instances, individuals may apply for
asylum during their proceedings as a defense against removal, referred to as asylum during their proceedings as a defense against removal, referred to as defensive
Executive Office for Immigration ReviewExecutive Office for Immigration Review (EOIR). .
Individuals may qualify for asylum if they are unable or unwilling to return to their country because of persecution or a well- 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 founded fear of persecution based on one of five protected grounds: race, religion, nationality, political opinion, or
membership in a particular social group. Persons granted asylum, and their spouses and minor children, may remain in the membership in a particular social group. 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 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. adjust to lawful permanent resident (LPR) status. 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 country if they did not seek asylum in that third country or avail themselves of certain lawful pathways to enter the United States. Some individuals who are not eligible for asylum may be granted other Some individuals who are not eligible for asylum may be granted other
types of protection during their proceedings, including withholding of removal and protection under the United Nations types of protection during their proceedings, including withholding of removal and protection under the United Nations
Convention Against Torture. Convention Against Torture.
In recent years, the number of asylum applications filed in immigration courts has generally increased, including 230,389 In recent years, the number of asylum applications filed in immigration courts has generally increased, including 230,389
defensive asylum applications filed in FY2022, the largest annual number since at least FY1996 (the earliest available data). defensive asylum applications filed in FY2022, the largest annual number since at least FY1996 (the earliest available data).
At the end of the first quarter of FY2023, 749,133 asylum applications were pending in immigration courts. At the end of the first quarter of FY2023, 749,133 asylum applications were pending in immigration courts.
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Contents
Introduction ..................................................................................................................................... 1
Overview and Processes .................................................................................................................. 2
Expedited and Formal Removal ................................................................................................ 2
Asylum, Withholding of Removal, and Protection under the Convention Against
Torture .................................................................................................................................... 4
Selected Trends ................................................................................................................................ 5
Case Receipts and Pending Cases ............................................................................................. 5
Asylum Outcomes in Immigration Courts ................................................................................ 7
Figures
Figure 1. Defensive and Affirmative Applications Filed, FY2008-FY2022 ................................... 6
Figure 2. Pending Asylum Applications, FY2008-FY2023 (Q1) .................................................... 7
Figure 3. Pending Asylum Applications by Country of Origin ....................................................... 7
Tables
Table 1. Asylum Outcomes, FY2008-FY2022 ................................................................................ 8
Contacts
Author Information .......................................................................................................................... 9
Congressional Research Service Congressional Research Service
Asylum Process in Immigration Courts and Selected Trends
Introduction
Under the Immigration and Nationality Act (INA), foreign nationals (Under the Immigration and Nationality Act (INA), foreign nationals (aliens, as termed in as termed in
immigration law)1 who are present in the United States, or who arrive in the United States at a 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 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 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 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 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 placed in removal proceedings in immigration court. In these instances, individuals may apply for
asylum as a defense against removal, referred to as asylum as a defense against removal, referred to as defensive asylum, during their proceedings. By , during their proceedings. By
contrast, individuals seeking asylum in the United States who are not in removal proceedings may contrast, individuals seeking asylum in the United States who are not in removal proceedings may
apply for apply for affirmative asylum with DHS’s U.S. Citizenship and Immigration Services (USCIS).3 with DHS’s U.S. Citizenship and Immigration Services (USCIS).3
During removal proceedings, immigration judges (IJs) determine whether foreign nationals During removal proceedings, immigration judges (IJs) determine whether foreign nationals
charged with an immigration violation are removable and adjudicate certain applications for relief 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 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 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 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, 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 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 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 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. 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, 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 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, 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 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 defensive asylum applications originally filed in immigration courts (570,358) as well as
affirmativeaffirmative asylum applications that USCIS has referred to EOIR (178,775).6asylum applications that USCIS has referred to EOIR (178,775).6 In general, In general,
immigration courts are contending with the highest levels of removal cases in EOIR’s 40-year 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 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 postponement of certain hearings during the COVID-19 pandemic.7
1 The INA defines an 1 The INA defines an alien as a person who is not a citizen or a national of the United States. See INA §101(a)(3). as a person who is not a citizen or a national of the United States. See INA §101(a)(3).
2 INA §208(a); 8 U.S.C. §1158(a). 2 INA §208(a); 8 U.S.C. §1158(a).
3 For more information on asylum generally, including affirmative asylum, see CRS Report R45539, 3 For more information on asylum generally, including affirmative asylum, see CRS Report R45539, Immigration: U.S.
Asylum Policy. .
4 INA §208(b)(B)(i); 8 U.S.C. §1158(b)(B)(i). 4 INA §208(b)(B)(i); 8 U.S.C. §1158(b)(B)(i).
5 EOIR, “Total Asylum Applications,” Adjudication Statistics, January 16, 2023. 5 EOIR, “Total Asylum Applications,” Adjudication Statistics, January 16, 2023.
6 USCIS refers cases to EOIR when it finds an applicant ineligible for asylum and the applicant does not have a lawful 6 USCIS refers cases to EOIR when it finds an applicant ineligible for asylum and the applicant does not have a lawful
status. status.
7 For more information, see CRS Report R47077, 7 For more information, see CRS Report R47077, U.S. Immigration Courts and the Pending Cases Backlog. .
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Overview and Processes
Expedited and Formal Removal
Foreign nationals may be subject to removal from the United States when DHS charges them 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 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 the interior of the country. Under the INA, both expedited and and formal removal processes allow a removal processes allow a
removable alien to seek asylum; each requires different processes for doing so.10 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 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 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. 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 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 persecution in their countries may have their claim reviewed by a USCIS asylum officer during a
credible fear interview. credible fear interview.
To establish a credible fear of persecution, the individual must establish that they have a 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 “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 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 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 demonstrate a credible fear are typically removed by DHS’s Immigration and Customs
Enforcement (ICE). Enforcement (ICE).
DHS may process those determined to have a credible fear of persecution into one of two DHS may process those determined to have a credible fear of persecution into one of two
pathways: an pathways: an Asylum Merits Interview (AMI) with USCIS, or formal removal proceedings in (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), 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 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 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 formal removal proceedings.14 DHS is implementing this process in a phased manner; it is not
8 INA §212; 8 U.S.C. §1182. 8 INA §212; 8 U.S.C. §1182.
9 INA §237; 8 U.S.C. §1227. 9 INA §237; 8 U.S.C. §1227.
10 In March 2020, in response to the COVID-19 pandemic, the Centers for Disease Control and Prevention (CDC) 10 In March 2020, in response to the COVID-19 pandemic, the Centers for Disease Control and Prevention (CDC)
invoked authority under Title 42 of the U.S. Code to limit the entry of certain foreign nationals, including those invoked authority under Title 42 of the U.S. Code to limit the entry of certain foreign nationals, including those
intending to apply for asylum and other humanitarian protections. Title 42 expulsions by DHS are not removal intending to apply for asylum and other humanitarian protections. Title 42 expulsions by DHS are not removal
procedures under the INA and they do not involve immigration courts. For more information on Title 42, see CRS procedures under the INA and they do not involve immigration courts. For more information on Title 42, see CRS
Report R47343, Report R47343, U.S. Border Patrol Apprehensions and Title 42 Expulsions at the Southwest Border: Fact Sheet. .
11 Expedited removal was established under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 11 Expedited removal was established under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(P.L. 104-208, Div. C), codified at INA §235(b)(1). For more information about expedited removal, see CRS In Focus (P.L. 104-208, Div. C), codified at INA §235(b)(1). For more information about expedited removal, see CRS In Focus
IF11357, IF11357, Expedited Removal of Aliens: An Introduction and CRS Report R45314, and CRS Report R45314, Expedited Removal of Aliens: Legal
Framework. .
12 See Refugee, Asylum, and International Operations Directorate Officer Training Asylum Division Officer Training 12 See Refugee, Asylum, and International Operations Directorate Officer Training Asylum Division Officer Training
Course, USCIS, February 13, 2017, https://www.aila.org/infonet/raio-and-asylum-division-officer-training-course Course, USCIS, February 13, 2017, https://www.aila.org/infonet/raio-and-asylum-division-officer-training-course
(citing(citing Holmes v. Amerex Rent-a-Car, 180 F.3d 294, 297 (D.C. Cir. 1999))180 F.3d 294, 297 (D.C. Cir. 1999)).
13 DHS and EOIR, “Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, 13 DHS and EOIR, “Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal,
and CAT Protection Claims by Asylum Officers,” 87 and CAT Protection Claims by Asylum Officers,” 87 Federal Register 18078-18226. For more information about the 18078-18226. For more information about the
IFR, see CRS In Focus IF12162, IFR, see CRS In Focus IF12162, Federal Agency Rule Expands Asylum Officers’ Authority. .
14 If the asylum claim is denied, the applicant may be considered for withholding of removal under the INA and 14 If the asylum claim is denied, the applicant may be considered for withholding of removal under the INA and
protection under the Convention Against Torture (CAT). The applicant may also request a de novo review of the denial protection under the Convention Against Torture (CAT). The applicant may also request a de novo review of the denial
and have their asylum application adjudicated by an IJ in and have their asylum application adjudicated by an IJ in streamlined removal proceedings. .
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widespread.15 As of December 2022, USCIS had referred 978 credible fear claimants for an widespread.15 As of December 2022, USCIS had referred 978 credible fear claimants for an
AMI.16 AMI.16
Most individuals who demonstrate a credible fear enter formal removal proceedings in EOIR’s 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 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 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 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 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 expedited removal) if the individual is not subject to expedited removal or at the agency’s
discretion. discretion.
Formal removal proceedings begin after DHS issues a Notice to Appear (NTA) charging 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 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 Office of the Principal Legal Advisor (OPLA) represent DHS. The migrant, or respondent, may , may
represent himself or herself or obtain counsel at his or her own expense or pro bono. Under the 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 INA, the federal government generally may not appoint counsel for respondents in removal
proceedings.19 proceedings.19
Removal proceedings usually consist of multiple hearings before an IJ. If a respondent has 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 received written notice of a hearing and does not attend it, the IJ must order the individual
removed removed in absentia (in the respondent’s absence).20 During an initial master calendar hearing, an (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 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 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 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 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 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 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 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 individual calendar hearing), an evidentiary hearing in which the IJ considers challenges to
15 The IFR applies to adults and families placed in expedited removal proceedings after May 31, 2022; currently, only 15 The IFR applies to adults and families placed in expedited removal proceedings after May 31, 2022; currently, only
those who indicate an intention of residing in Boston, Los Angeles, Miami, New York, Newark, or San Francisco may those who indicate an intention of residing in Boston, Los Angeles, Miami, New York, Newark, or San Francisco may
be referred for an AMI. DHS stated that as of May 31, 2022, it would “aim to refer approximately a few hundred be referred for an AMI. DHS stated that as of May 31, 2022, it would “aim to refer approximately a few hundred
noncitizens each month to USCIS” for an AMI. See USCIS, “Fact Sheet: Implementation of the Credible Fear and noncitizens each month to USCIS” for an AMI. See USCIS, “Fact Sheet: Implementation of the Credible Fear and
Asylum Processing Interim Final Rule,” https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/fact-sheet-Asylum Processing Interim Final Rule,” https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/fact-sheet-
implementation-of-the-credible-fear-and-asylum-processing-interim-final-rule. implementation-of-the-credible-fear-and-asylum-processing-interim-final-rule.
16 DHS, “Asylum Processing Rule Cohort Reports,” https://www.dhs.gov/immigration-statistics/special-reports/ 16 DHS, “Asylum Processing Rule Cohort Reports,” https://www.dhs.gov/immigration-statistics/special-reports/
asylum-processing-rule-report. asylum-processing-rule-report.
17 EOIR, “Pending I-862 Proceedings Originating With a Credible Fear Claim and All Pending I-862s,” Adjudication 17 EOIR, “Pending I-862 Proceedings Originating With a Credible Fear Claim and All Pending I-862s,” Adjudication
Statistics, January 16, 2023. Statistics, January 16, 2023.
18 INA §240; 8 U.S.C. §1229a. For more information, see CRS In Focus IF11536, 18 INA §240; 8 U.S.C. §1229a. For more information, see CRS In Focus IF11536, Formal Removal Proceedings: An
Introduction and CRS Infographic IG10022, and CRS Infographic IG10022, Immigration Court Proceedings: Process and Data. .
19 INA §240(b)(4); 8 U.S.C. §1229a(b)(4). For more information, see CRS In Focus IF12158, 19 INA §240(b)(4); 8 U.S.C. §1229a(b)(4). For more information, see CRS In Focus IF12158, U.S. Immigration Courts:
Access to Counsel in Removal Proceedings and Legal Access Programs. .
20 The removal order may be rescinded if a respondent files a motion to reopen proceedings and demonstrates that the 20 The removal order may be rescinded if a respondent files a motion to reopen proceedings and demonstrates that the
failure to appear occurred because he or she did not receive proper notice of the hearing, faced “exceptional failure to appear occurred because he or she did not receive proper notice of the hearing, faced “exceptional
circumstances,” or was in custody and unable to appear through no fault of his or her own. For more information, see circumstances,” or was in custody and unable to appear through no fault of his or her own. For more information, see
CRS In Focus IF11892, CRS In Focus IF11892, At What Rate Do Noncitizens Appear for Their Removal Hearings? Measuring In Absentia
Removal Order Rates. .
21 INA §208(d)(4)(A), INA §208(d)(6). 21 INA §208(d)(4)(A), INA §208(d)(6).
22 8 C.F.R. §208.20. 22 8 C.F.R. §208.20.
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removability and the respondent’s application(s) for relief.23 During the merits hearing, parties 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 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, 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 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 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 whether the respondent is granted relief or ordered removed.24
During removal proceedings, IJs may also temporarily remove cases from their active dockets During removal proceedings, IJs may also temporarily remove cases from their active dockets
through through administrative closure. Administrative closure allows respondents the opportunity to . Administrative closure allows respondents the opportunity to
have their applications for immigration relief resolved by other agencies, such as USCIS.25 IJs have their applications for immigration relief resolved by other agencies, such as USCIS.25 IJs
may also may also terminate cases, for example, in response to a party’s motion to dismiss charges on the cases, for example, in response to a party’s motion to dismiss charges on the
grounds that the respondent is not removable as charged. 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 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 appellate body. The respondent may file a petition for judicial review of a BIA decision with a
federal circuit court of appeals. 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, 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 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 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 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 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, 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 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 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 23 In addition to asylum and the forms of relief explained in this report, respondents may pursue other forms of relief in 23 In addition to asylum and the forms of relief explained in this report, respondents may pursue other forms of relief in
removal proceedings, such as cancellation of removal. Respondents may also pursue certain types of immigration removal proceedings, such as cancellation of removal. Respondents may also pursue certain types of immigration
benefits with USCIS, such as adjustment to LPR status based on a qualifying family relationship. Others may seek benefits with USCIS, such as adjustment to LPR status based on a qualifying family relationship. Others may seek
voluntary departure from the United States. For a comprehensive list of common types of protection and relief from voluntary departure from the United States. For a comprehensive list of common types of protection and relief from
removal, see CRS Report R47077, removal, see CRS Report R47077, U.S. Immigration Courts and the Pending Cases Backlog, Table 3. , Table 3.
24 Requirements for designating a country of removal are at INA §241(b); 8 U.S.C. §1231(b). See also Adam L. 24 Requirements for designating a country of removal are at INA §241(b); 8 U.S.C. §1231(b). See also Adam L.
Fleming, “Around the World in the INA: Designating a Country of Removal in Immigration Proceedings,” Fleming, “Around the World in the INA: Designating a Country of Removal in Immigration Proceedings,”
Immigration Law Advisor, May 2013. , May 2013.
25 For more information about administrative closure, including its use under different administrations, see “Docket 25 For more information about administrative closure, including its use under different administrations, see “Docket
Management and Administrative Closure” in CRS Report R47077, Management and Administrative Closure” in CRS Report R47077, U.S. Immigration Courts and the Pending Cases
Backlog. .
26 Even if an applicant has undergone a credible fear interview with USCIS during expedited removal, they must apply 26 Even if an applicant has undergone a credible fear interview with USCIS during expedited removal, they must apply
for asylum once in formal removal proceedings. Form I-589 may also be used to apply for withholding of removal and for asylum once in formal removal proceedings. Form I-589 may also be used to apply for withholding of removal and
protection under CAT. Those individuals granted an AMI with USCIS do not file an I-589; instead, the record of the protection under CAT. Those individuals granted an AMI with USCIS do not file an I-589; instead, the record of the
credible fear determination serves as the asylum application. credible fear determination serves as the asylum application.
27 There are exceptions for applicants with changed circumstances that materially affect their eligibility for asylum, 27 There are exceptions for applicants with changed circumstances that materially affect their eligibility for asylum,
applicants with extraordinary circumstances relating to the delay in filing an application, and unaccompanied children. applicants with extraordinary circumstances relating to the delay in filing an application, and unaccompanied children.
See INA §208(a)(2)(B). See INA §208(a)(2)(B).
28 INA §208(b)(2)(A)(vi); 8 U.S.C. §1158 (b)(2)(A)(vi). For more information, see CRS Legal Sidebar LSB10815, 28 INA §208(b)(2)(A)(vi); 8 U.S.C. §1158 (b)(2)(A)(vi). For more information, see CRS Legal Sidebar LSB10815, An
Overview of the Statutory Bars to Asylum: Limitations on Applying for Asylum (Part One) and CRS Legal Sidebar and CRS Legal Sidebar
LSB10816, LSB10816, An Overview of the Statutory Bars to Asylum: Limitations on Granting Asylum (Part Two). .
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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 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 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.freedom would be threatened based on a protected ground.
both asylum and withholding of removal because they do not qualify for protection under one of 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 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 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 international treaty provision that protects individuals from return to countries where it is more
likely than not that they would be tortured.likely than not that they would be tortured.
allow possible removal to a third country; unlike asylum, these forms of protection do not provide allow possible removal to a third country; unlike asylum, these forms of protection do not provide
a path to LPR status. a path to LPR status.
Immigration courts also adjudicate asylum applications for individuals in proceeding types other 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 than removal proceedings. Crewmembers, stowaways, and those who have entered under the Visa
Waiver Program (VWP)Waiver Program (VWP)
adjudicated during adjudicated during asylum-only proceedings..
expedited removal order based on an aggravated felony conviction may apply for asylum during expedited removal order based on an aggravated felony conviction may apply for asylum during
withholding-only proceedings..
Selected Trends
Case Receipts and Pending Cases
Immigration courts adjudicate asylum applications first filed as a defense against removal 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 ) as well as applications that were first filed with USCIS and subsequently referred to
EOIR (EOIR (affirmative). Immigration courts have generally received large volumes of defensive ). Immigration courts have generally received large volumes of defensive
asylum applications in recent years asylum applications in recent years (Figure 1), except for FY2021 (likely due to disruptions from , except for FY2021 (likely due to disruptions from
the COVID-19 pandemic).the COVID-19 pandemic).
report generally include all of these case types. For more information, see CRS In Focus IF11736, report generally include all of these case types. For more information, see CRS In Focus IF11736, Reinstatement of
Removal: An Introduction. .
(continued...) Congressional Research Service 5 link to page 10 link to page 10 Asylum Process in Immigration Courts and Selected Trends (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, EOIR, “Defensive Asylum Applications” and “Affirmative Asylum Applications,” Adjudication Statistics,
January 16, 2023. January 16, 2023.
Notes: : Defensive cases are those filed with an immigration court. cases are those filed with an immigration court. Affirmative cases are cases that originated with cases are cases that originated with
USCIS and subsequently were referred to EOIR. USCIS and subsequently were referred to EOIR.
At the end of FY2023 Q1, there were 749,133 pending asylum applications among the 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 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 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 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 Q5% 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 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 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 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 new removal cases in FY2022—a record high. Many of those individuals who intend to seek
asylum may have yet to file an application. asylum may have yet to file an application.
The number of asylum applications pending in immigration courts has grown substantially in The number of asylum applications pending in immigration courts has grown substantially in
recent yearrecent years (Figure 2). From FY2008 to FY2017, the defensive proportion of pending . From FY2008 to FY2017, the defensive proportion of pending
applications increased relative to the affirmative proportion (from 28% in FY2008 to 82% in 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 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 defensive applications have remained the majority of pending asylum applications (76% at the
end of FY2023 Q1). end of FY2023 Q1).
the Title 42 public health authority, which does not allow a process to apply for asylum. See CRS Report R47343, U.S. Border Patrol Apprehensions and Title 42 Expulsions at the Southwest Border: Fact Sheet. Congressional Research Service Congressional Research Service
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Figure 2. Pending Asylum Applications, FY2008-FY2023 (Q1)
Source: EOIR, “Defensive Asylum Applications” and “Affirmative Asylum Applications,” Adjudication Statistics, EOIR, “Defensive Asylum Applications” and “Affirmative Asylum Applications,” Adjudication Statistics,
January 16, 2023. January 16, 2023.
Notes: *FY2023 through Q1 only. : *FY2023 through Q1 only.
Among all pending asylum applications in immigration courts, approximately 80% of applicants Among all pending asylum applications in immigration courts, approximately 80% of applicants
are from the following 10 countries: Guatemala, Honduras, El Salvador, Mexico, Venezuela, are from the following 10 countries: Guatemala, Honduras, El Salvador, Mexico, Venezuela,
Cuba, India, Ecuador, Brazil, and Nicaragua (as of November 2022). 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) (Based on 787,196 applications through November 2022)
Source: Transactional Records Access Clearinghouse (TRAC) at Syracuse University, Asylum Filings through Transactional Records Access Clearinghouse (TRAC) at Syracuse University, Asylum Filings through
November 2022, accessed February 2, 2023. November 2022, accessed February 2, 2023.
Notes: Includes defensive and affirmative asylum applications in immigration courts. TRAC obtains EOIR data Includes defensive and affirmative asylum applications in immigration courts. TRAC obtains EOIR data
through requests made under the Freedom of Information Act (FOIA). 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 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: 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 grants, denials, administrative closures, and “other” (cases that were abandoned, withdrawn, or
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not adjudicated), as presented i not adjudicated), as presented in Table 1.
the number of relief grants divided by the sum of relief grants and denials only.the number of relief grants divided by the sum of relief grants and denials only.
respondents denied asylum may have been granted other forms of relief or protection from respondents denied asylum may have been granted other forms of relief or protection from
removal. removal.
During the last 15 fiscal years (FY2008-FY2022), based on the total sum of outcomes, the annual 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 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). ranged from 16.74% (FY2022) to 54.49% (FY2020).
The rates of administrative closures and other outcomes also fluctuated during this period, The rates of administrative closures and other outcomes also fluctuated during this period,
corresponding with shifting agency guidance for this docket management tool (administrative corresponding with shifting agency guidance for this docket management tool (administrative
closure) under different administrations.closure) under different administrations.
“other,” the highest rate during the period examined. This outcome includes terminated and “other,” the highest rate during the period examined. This outcome includes terminated and
dismissed proceedings,dismissed proceedings,
terminate the proceedings based on substantive or procedural grounds, DHS moved to dismiss 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 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).dismissed by the IJ (e.g., because DHS failed to file the NTA in immigration court).
The consequences for an applicant whose asylum outcome is designated “other” may vary. In 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 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 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 has withdrawn his or her application for asylum or failed to abide by the deadlines set by the IJ
and may be ordered removed.and may be ordered removed.
Table 1. Asylum Outcomes, FY2008-FY2022
Administrative
“Other”
Total
Fiscal Year
Grant Rate
Denial Rate
Closure Rate
Rate
Outcomes
2008 2008
23.66% 23.66%
31.15% 31.15%
6.37% 6.37%
38.82% 38.82%
36,903 36,903
2009 2009
23.92% 23.92%
28.48% 28.48%
6.37% 6.37%
41.23% 41.23%
34,717 34,717
2010 2010
25.34% 25.34%
25.95% 25.95%
10.26% 10.26%
38.45% 38.45%
32,230 32,230
2011 2011
31.35% 31.35%
29.70% 29.70%
4.55% 4.55%
34.40% 34.40%
31,350 31,350
2012 2012
30.55% 30.55%
24.95% 24.95%
14.25% 14.25%
30.25% 30.25%
34,114 34,114
2013 2013
24.93% 24.93%
22.73% 22.73%
25.32% 25.32%
27.03% 27.03%
38,799 38,799
2014 2014
22.85% 22.85%
24.67% 24.67%
25.42% 25.42%
27.07% 27.07%
37,398 37,398
2015 2015
18.70% 18.70%
20.36% 20.36%
35.61% 35.61%
25.33% 25.33%
43,178 43,178
“Asylum Decision Rates in Cases Originating with a Credible Fear Claim,” https://www.justice.gov/eoir/workload-and-“Asylum Decision Rates in Cases Originating with a Credible Fear Claim,” https://www.justice.gov/eoir/workload-and-
adjudication-statistics. adjudication-statistics.
Asylum Process Leads to Mixed Results,” November 29, 2022, https://trac.syr.edu/reports/703/. Asylum Process Leads to Mixed Results,” November 29, 2022, https://trac.syr.edu/reports/703/.
U.S. Immigration Courts and the Pending Cases Backlog. .
dismissed. See EOIR, “FY2022 Decision Outcomes,” October 13, 2022. dismissed. See EOIR, “FY2022 Decision Outcomes,” October 13, 2022.
enforcement. For more information, see CRS Legal Sidebar LSB10578, enforcement. For more information, see CRS Legal Sidebar LSB10578, The Biden Administration’s Immigration
Enforcement Priorities: Background and Legal Considerations. For more information on DHS failures to file NTAs in . For more information on DHS failures to file NTAs in
immigration court, see CRS Insight IN12046, immigration court, see CRS Insight IN12046, Migrant Arrivals at the Southwest Border: Challenges for Immigration
Courts. .
Congressional Research Service Congressional Research Service
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Asylum Process in Immigration Courts and Selected Trends
2016 2016
15.81% 15.81%
21.37% 21.37%
39.40% 39.40%
23.42% 23.42%
54,706 54,706
2017 2017
19.66% 19.66%
32.83% 32.83%
20.32% 20.32%
27.19% 27.19%
53,533 53,533
2018 2018
20.69% 20.69%
41.75% 41.75%
3.29% 3.29%
34.26% 34.26%
63,479 63,479
2019 2019
20.62% 20.62%
49.55% 49.55%
0.14% 0.14%
29.68% 29.68%
91,451 91,451
2020 2020
19.13% 19.13%
54.49% 54.49%
0.63% 0.63%
25.75% 25.75%
76,113 76,113
2021 2021
16.06% 16.06%
30.64% 30.64%
6.36% 6.36%
46.94% 46.94%
46,071 46,071
2022 2022
14.17% 14.17%
16.74% 16.74%
12.77% 12.77%
56.31% 56.31%
158,199 158,199
Source: EOIR, “Asylum Decision Rates,” Adjudication Statistics, January 16, 2023. EOIR, “Asylum Decision Rates,” Adjudication Statistics, January 16, 2023.
Notes: Grant, Denial, Administrative Closure, and “Other” rates are calculated as the sum of those outcomes Grant, Denial, Administrative Closure, and “Other” rates are calculated as the sum of those outcomes
for each fiscal year divided by the total outcomes for the fiscal year. for each fiscal year divided by the total outcomes for the fiscal year.
Author Information
Holly Straut-Eppsteiner Holly Straut-Eppsteiner
Analyst in Immigration Policy Analyst in Immigration Policy
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