Asylum Process in Immigration Courts and Selected Trends
Updated December 10, 2025
(R47504)
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Summary
Immigration law permits aliens (foreign nationals) to apply for asylum if they are present in the United States or have arrived at a port of entry, irrespective of their immigration status. Individuals charged with an immigration violation by the U.S. Asylum Process in Immigration Courts and
May 15, 2023
Selected Trends
Holly Straut-Eppsteiner
Individuals who reside unlawfully in the United States, who arrive in the United States at a port
Analyst in Immigration
of entry and are inadmissible, or who cross into the United States illegally between ports of entry
Policy
may be charged with an immigration violation by the Department of Homeland Security (DHS)
andDepartment of Homeland Security (DHS) may be placed in removal proceedings in immigration court 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 defensive
asylum. Removal proceedings are adjudicated by immigration judges within the Department of Justice’s Executive Office for Immigration Review (EOIR).
within the U.S. Department of Justice's (DOJ's) Executive Office for Immigration Review (EOIR). Aliens in removal proceedings may apply for asylum as a defense against removal, referred to as defensive asylum. Defensive asylum applications are adjudicated by EOIR's immigration judges.
Individuals may qualify for asylum if they are unable or unwilling to return to their country because of persecution or a well-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. 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 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 StatesGenerally, an individual must apply for asylum within one year of arrival in the United States. In recent years, the Biden Administration and second Trump Administration have implemented restrictions on eligibility for asylum for certain migrants arriving at the southern border. Persons granted asylum, and their spouses and minor children, may remain in the United States and apply for work authorization. After one year of physical presence in the United States, they may apply to adjust to lawful permanent resident (LPR) status. Some individuals who are not eligible for . Some individuals who are not eligible for
asylum may be granted other types of protectionasylum may be granted other types of protection
during their proceedings, including withholding of removal and protection , including withholding of removal and protection
under the United Nations Convention Against Torture.under the United Nations Convention Against Torture.
In recent years, the number of asylum applications filed in immigration courts 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 have reached record high levels (since at least FY1996since at least FY1996
, (the earliest the earliest
publicly available data), with more than 897,000 defensive applications filed in FY2024 and about 831,000 filed in FY2025. At the end of FY2025, more than 2.4 million asylum applications were pending in immigration courts. This level of asylum applications (the adjudication of which is a subset of all removal proceedings) presents considerable adjudication challenges for immigration courts.
Introduction
Under the Immigration and Nationality Act (INA), aliens (foreign nationals)1available data). 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 (aliens, as termed in immigration law)1 who are present in the United States, or who arrive in the United States at a who are present in the United States, or who arrive in the United States at a
port of entry port of entry
(POE) or between POEsor between ports of entry, may apply for asylum irrespective of their immigration , may apply for asylum irrespective of their immigration
status.2 Individuals who reside unlawfully in the United States, who arrive in the United States at a POE and are inadmissible, or who cross illegally into the United States between POEs status, subject to certain exceptions.2 Aliens who are subject to removal from the United States may be may be
charged with an immigration violation by the charged with an immigration violation by the
U.S. Department of Homeland Security (DHS) and Department of Homeland Security (DHS) and
placed in removal proceedings in immigration courtplaced in removal proceedings in immigration court
. In these instances, individuals within the U.S. Department of Justice's (DOJ's) Executive Office for Immigration Review (EOIR).3 Aliens in removal proceedings (referred to as respondents) generally may apply for may apply for
asylum as a defense against removal, asylum as a defense against removal,
referred toknown as as
defensive asylum, during their proceedings. . By 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 DHSwith DHS
’'s U.S. Citizenship and Immigration Services (USCIS).s U.S. Citizenship and Immigration Services (USCIS).
3
4
During removal proceedings, immigration judges (IJs) determine whether During removal proceedings, immigration judges (IJs) determine whether
foreign nationals charged with an immigration violation are removablerespondents are removable as charged and adjudicate certain applications for relief and adjudicate certain applications for relief
or protection from removal, including asylum.or protection from removal, including asylum.
Immigration courts are within the Executive Office for Immigration Review (EOIR), a Department of Justice (DOJ) agency. Individuals may qualify for asylum if they are5 Individuals may qualify for asylum if they meet the INA's definition of a "refugee"—that is, a person who is unable or unwilling to return to their home country because of persecution 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 groundsor a well-founded fear of persecution based on one of five protected grounds
—: race, religion, 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.requirements.
46 Those granted asylum, and their spouses and minor children, may remain in the 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
StatesStates after being granted asylum, they may apply to adjust to lawful permanent resident (LPR) status., they may apply to adjust to lawful permanent resident (LPR) status.
In recent years, the number of asylum applications filed has generally increased. In FY2022, EOIR received 230,389
Although aliens present in the United States have a right to apply for asylum under the INA, the asylum statute permits the DHS Secretary and Attorney General to establish requirements and procedures for asylum eligibility.7 The Biden Administration and the second Trump Administration have both used this authority to temporarily restrict access to asylum for certain migrants arriving at the Southwest border.8
In recent years, the number of asylum applications filed in immigration courts has increased substantially. In FY2024, EOIR received 897,633 defensive asylum applications, the largest annual number of filings since defensive asylum applications, the largest annual number of filings since
at least FY1996 (the earliest at least FY1996 (the earliest
publicly available data); in FY2025, EOIR received 831,076 defensive applications. At the end of FY2025, more than 2.4 millionavailable data). At the end of the first quarter (Q1) of FY2023, 749,133 total asylum applications were pending in immigration courts. total asylum applications were pending in immigration courts.
59 This included both This included both
defensive asylum applications originally filed in immigration courts defensive asylum applications originally filed in immigration courts
(570,358) as well as and affirmativeaffirmative
asylum applications that USCIS has referred to EOIRasylum applications that USCIS has referred to EOIR
(178,775).6.10 In general, In general,
immigration courts are contending with the highest levels of removal cases in EOIRimmigration courts are contending with the highest levels of removal cases in EOIR
’s 40's 42-year -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
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). 2 INA §208(a); 8 U.S.C. §1158(a). 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). 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 status.
7 For more information, see CRS Report R47077, U.S. Immigration Courts and the Pending Cases Backlog.
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Asylum Process in Immigration Courts and Selected Trends
postponement of certain hearings during the COVID-19 pandemic.11
Overview and Processes
Expedited and Formal Removal
Foreign nationals
Aliens may be subject to removal from the United States when DHS charges them may be subject to removal from the United States when DHS charges them
with one or more grounds of with one or more grounds of
inadmissibility8inadmissibility12 or deportability, or deportability,
913 either at the U.S. border or within 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.removable alien to seek asylum; each requires different processes for doing so.
10
Under expedited removal, DHS may14
Expedited removal allows DHS to remove certain migrants remove certain migrants
“"without further hearing or without further hearing or
review.”11 At present, expedited removalreview."15 This process generally applies to inadmissible aliens arriving at applies to inadmissible aliens arriving at
a POEports of entry and and
those apprehended within 100 miles of the U.S. land border within two weeks of arrivalthose apprehended within 100 miles of the U.S. land border within two weeks of arrival
. who entered unlawfully or lack valid documentation. The second Trump Administration has extended the use of expedited removal "to the fullest extent authorized by Congress," to include aliens anywhere within the United States who have not been admitted or paroled into the United States and who have been present in the country for less than two years.16 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 persecution
in their countriesor torture if removed may have their claim reviewed by a USCIS asylum officer during a may have their claim reviewed by a USCIS asylum officer during a
credible fear interview.credible fear interview.
17
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 possibilitysignificant possibility
”" of establishing asylum eligibility—that is, a of establishing asylum eligibility—that is, a
“"substantial and realistic substantial and realistic
possibility of succeedingpossibility of succeeding
”" in a hearing before an IJ. in a hearing before an IJ.
1218 Individuals who receive a negative credible 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 DHSdemonstrate a credible fear are typically removed by DHS
’'s Immigration and Customs s Immigration and Customs
Enforcement (ICE).
DHS may process those determined to have a credible fear of persecution into one of two pathways: an Asylum Merits Interview (AMI) with USCIS, or formal removal proceedings in immigration court. The AMI is a new process introduced in a DHS-DOJ interim final rule (IFR), which went into effect on May 31, 2022.13 The IFR allows asylum officers to adjudicate asylum applications in the first instance in a nonadversarial interview rather than placing migrants in formal removal proceedings.14 DHS is implementing this process in a phased manner; it is not
8 INA §212; 8 U.S.C. §1182. 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) 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 procedures under the INA and they do not involve immigration courts. For more information on Title 42, see CRS 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 (P.L. 104-208, Div. C), codified at INA §235(b)(1). For more information about expedited removal, see CRS In Focus IF11357, Expedited Removal of Aliens: An Introduction and CRS Report R45314, Expedited Removal of Aliens: Legal
Framework.
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 (citing Holmes v. Amerex Rent-a-Car, 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, and CAT Protection Claims by Asylum Officers,” 87 Federal Register 18078-18226. For more information about the 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 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 streamlined removal proceedings.
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widespread.15 As of December 2022, USCIS had referred 978 credible fear claimants for an AMI.16
Most individualsEnforcement (ICE).
Individuals who demonstrate who demonstrate
having a credible fear enter formal removal proceedings in EOIRa credible fear enter formal removal proceedings in EOIR
’s '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 total removal cases pending with EOIR had originated from credible fear claims.17asylum. DHS may also 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 agencyexpedited removal) if the individual is not subject to expedited removal or at the agency
’s '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.document and files it in immigration court.
1819 During removal proceedings, attorneys from ICE During removal proceedings, attorneys from ICE
’s '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.proceedings.
19
20
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 (in the respondent
’'s absence).s absence).
2021 During an initial master calendar hearing, an During an initial master calendar hearing, an
IJ explains the respondentIJ explains the respondent
’'s rights, the charges against the respondent, and the nature of the s rights, the charges against the respondent, and the nature of the
proceedings; verifies the respondentproceedings; verifies the respondent
’'s contact information; provides information about legal 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 respondent knowingly files a
“frivolous”"frivolous" asylum application. asylum application.
2122 Criteria for a frivolous application Criteria for a frivolous application
are set in federal regulations and generally are based on are set in federal regulations and generally are based on
determinations that applications contain fabricated material elements.fabricated material elements.
22
23
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
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 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 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.
16 DHS, “Asylum Processing Rule Cohort Reports,” https://www.dhs.gov/immigration-statistics/special-reports/asylum-processing-rule-report.
17 EOIR, “Pending I-862 Proceedings Originating With a Credible Fear Claim and All Pending I-862s,” Adjudication Statistics, January 16, 2023.
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, 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, 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 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 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). 22 8 C.F.R. §208.20.
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individual calendar hearing), an evidentiary hearing in which the IJ considers challenges to removability and the respondentremovability and the respondent
’'s application(s) for relief.s application(s) for relief.
2324 During the merits hearing, parties 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.whether the respondent is granted relief or ordered removed.
24
25
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.have their applications for immigration relief resolved by other agencies, such as USCIS.
2526 IJs IJs
may also may also
terminate cases, for example, in response to a partycases, for example, in response to a party
’'s motion to dismiss charges on the 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 January 2025 guidance from the DHS Acting Secretary directed DHS officials to apply expedited removal to any alien "amenable to expedited removal but to whom expedited removal has not been applied," which "may include steps to terminate any ongoing removal proceeding."27 Reportedly, in some instances, OPLA attorneys have moved to dismiss removal proceedings for respondents who may then be subject to expedited removal, including respondents with pending asylum applications.28
At the conclusion of removal proceedings in immigration court, 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 underUnder 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.Application for Asylum and Withholding of Removal.
2629 Generally, an individual must apply for Generally, an individual must apply for
asylum within one year of arrival in the United States, with certain exceptions.asylum within one year of arrival in the United States, with certain exceptions.
2730 An individual 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 (a Safe Third Country agreement (
i.ee.g., to Canada). The INA also bars certain individuals from ., 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 have been
“"firmly resettled in another country prior to arriving in the United States.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 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 voluntary departure from the United States. For a comprehensive list of common types of protection and relief from removal, see CRS Report R47077, U.S. Immigration Courts and the Pending Cases Backlog, 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. Fleming, “Around the World in the INA: Designating a Country of Removal in Immigration Proceedings,” Immigration Law Advisor, May 2013.
25 For more information about administrative closure, including its use under different administrations, see “Docket 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 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 credible fear determination serves as the asylum application.
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. 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, An
Overview of the Statutory Bars to Asylum: Limitations on Applying for Asylum (Part One) and CRS Legal Sidebar 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 "31
In April 2025, EOIR published guidance in a policy memorandum stating that adjudicators may pretermit, without a hearing, asylum applications for aliens who "[fail] to set forth prima facie eligibility for relief," also described as "legally deficient asylum applications."32 The memorandum suggests such action as a method of efficient docket management, stating that adjudicators "should take all appropriate action to immediately resolve cases on their dockets that do not have viable legal paths for relief or protection from removal."33
Individuals who are ineligible for asylum generally may pursue withholding of removal under the INA, which prohibits the removal of an individual to a country where that person's life or freedom would be threatened based on a protected ground.34 Some individuals are ineligible for both asylum and withholding of removal because they do not qualify for protection under one of the protected grounds or because they are subject to other statutory bars. In such cases, applicants may seek protection under the United Nations Convention Against Torture (CAT), an international treaty provision that protects individuals from return to countries where it is more likely than not that they would be tortured.35 Withholding of removal under the INA and CAT allow possible removal to a third country; unlike asylum, these forms of protection do not provide a path to LPR status. Those granted withholding of removal and CAT protection may apply for employment authorization.
Immigration courts also adjudicate asylum applications for individuals in proceeding types other than removal proceedings. Crewmembers, stowaways, and those who have entered under the Visa Waiver Program36 are ineligible for removal proceedings and may have their applications adjudicated during asylum-only proceedings.37 Individuals with a reinstated order of removal or expedited removal order based on an aggravated felony conviction may apply for asylum during withholding-only proceedings.38
Restrictions on Asylum Eligibility During the Biden Administration and Second Trump Administration
In recent years, the Biden Administration and the second Trump Administration39 have implemented restrictions on asylum eligibility in response to high levels of enforcement encounters at the Southwest border. During the Biden Administration, in May 2023 DHS and EOIR issued a final rule ("Circumvention of Lawful Pathways") that created a "rebuttable presumption of ineligibility" for asylum. The rule applied to applicants arriving at the Southwest land border or adjacent coastal borders without valid documents after transiting through another country40 if they did not seek asylum in that third country or avail themselves of certain lawful pathways to enter 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 the United States, such as immigration parole programs available
at that time to certain nationals.to certain nationals.
30 41 Unaccompanied children Unaccompanied children
arewere exempt from the presumption. The rule exempt from the presumption. The rule
appliesapplied to those who to those who
enter entered the United States between May 11, 2023, and May 11, 2025the United States between May 11, 2023, and May 11, 2025
, and and
iswas applicable in affirmative and applicable in affirmative and
defensive asylum merits adjudications and in credible fear determinations.31
Individuals who are ineligible for asylum generally may pursue withholding of removal under the INA, which prohibits the removal of an individual to a country where that person’s life or freedom would be threatened based on a protected ground.32 Some individuals are ineligible for both asylum and withholding of removal because they do not qualify for protection under one of the protected grounds or because they are subject to other statutory bars. In such cases, applicants may seek protection under the United Nations Convention Against Torture (CAT), an international treaty provision that protects individuals from return to countries where it is more likely than not that they would be tortured.33 Withholding of removal under the INA and CAT allow possible removal to a third country; unlike asylum, these forms of protection do not provide a path to LPR status.
Immigration courts also adjudicate asylum applications for individuals in proceeding types other than removal proceedings. Crewmembers, stowaways, and those who have entered under the Visa Waiver Program (VWP)34 are ineligible for removal proceedings and may have their applications adjudicated during asylum-only proceedings.35 Individuals with a reinstated order of removal or expedited removal order based on an aggravated felony conviction may apply for asylum during withholding-only proceedings.36
Selected Trends
Case Receipts and Pending Cases
defensive asylum merits adjudications and in credible fear determinations.42
In June 2024, the Biden Administration issued a proclamation that "suspended and limited" the entry of certain migrants at the southern border. DHS and EOIR43 published an accompanying interim final rule ("Securing the Border") that restricted asylum eligibility for those subject to the proclamation during "emergency border circumstances."44 The proclamation did not apply to unaccompanied children, noncitizen U.S. nationals, lawful permanent residents, victims of a severe form of trafficking in persons, noncitizens with valid visas or lawful permission to enter, or noncitizens who arrive at a port of entry for a prescheduled appointment.45 DHS and EOIR finalized a related rule in October 2024. Individuals subject to the rule are ineligible for asylum absent "exceptionally compelling circumstances." Those deemed ineligible for asylum were given a negative credible fear screening and could be considered only for withholding of removal and CAT protection.
The second Trump Administration appears to have kept this rule in effect while also implementing new restrictions on asylum.46 In January 2025, the Trump Administration issued a presidential proclamation, "Guaranteeing the States Protection Against Invasion," which further restricted eligibility for asylum for migrants encountered between ports of entry at the Southwest border beginning January 20, 2025.47 Under the proclamation, "aliens engaged in the invasion across the Southern border of the United States" may not apply for asylum until the President "issue[s] a finding that the invasion at the southern border has ceased." In addition, the proclamation states that "any alien who fails, before entering the United States, to provide Federal officials with sufficient medical information and reliable criminal history and background information" is ineligible to apply for asylum. Unlike "Securing the Border," the "Guaranteeing the States Protection Against Invasion" proclamation does not provide for exceptions.48 Aliens subject to the proclamation may be screened for CAT protection.49
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 (affirmative). Immigration courts have generally received large volumes of defensive asylum applications in recent years (Figure 1), except for FY2021 (likely due to disruptions from the COVID-19 pandemic).37 Defensive asylum filings increased nearly fivefold between FY2014
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, Immigration Court Practice Manual, 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, Reinstatement of
Removal: An Introduction.
37 In FY2021, nearly two-thirds (63%) of migrant encounters with the U.S. Border Patrol resulted in expulsions under (continued...)
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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, January 16, 2023. Notes: Defensive cases are those filed with an immigration court. Affirmative cases are casesEOIR (affirmative). The annual number of asylum applications received by EOIR has generally increased since FY2015, reaching then-record levels each year from FY2017 to FY2019. Asylum applications declined slightly in FY2020 and more steeply in FY2021 reflecting circumstances of the COVID-19 pandemic.50 Each year from FY2022 through FY2024, EOIR received the largest annual numbers of asylum applications compared to any preceding year on record.51 Defensive asylum applications received by the courts more than doubled between FY2022 (242,921) and FY2023 (499,722) and more than tripled from FY2022 to FY2024, when 897,633 defensive asylum applications were filed with immigration courts (Figure 1). In FY2025, EOIR received approximately 831,000 defensive applications. This increase in applications is associated with high levels of enforcement encounters at the Southwest border in recent years, including among migrants seeking asylum who were placed into removal proceedings.52
The defensive proportion of EOIR's asylum application caseload has grown substantially. With the exception of one year (FY2007), from FY2000 to FY2012 EOIR received more affirmative referrals than defensive applications each year. This ratio flipped beginning in FY2013 and has continued each year since. In FY2025, defensive asylum applications represented 95% of applications received by EOIR.
Figure 1. Defensive and Affirmative Applications Filed, FY2000-FY2025
Source: CRS compilation of EOIR, Adjudication Statistics and Statistics Yearbooks, multiple years.
Notes: Defensive cases are those filed with an immigration court. Affirmative cases are those that originated with that originated with
USCIS and USCIS and
were subsequently subsequently
were referred to EOIR.referred to EOIR.
At the end of FY2023 Q1, there were 749,133 pending asylum applications among the approximately 1.87 million total removal cases pending in immigration courts. Although the overall number of pending removal cases has increased since the end of FY2022 (from 1.79 million to 1.87 million), the number of pending asylum applications declined by approximately 5% from the end of FY2022 (786,317) to the end of FY2023 Q1 (Figure 2).
Because individuals seeking asylum in immigration court as a defense against removal generally apply for asylum after DHS files the NTA, the proportion of respondents currently in removal proceedings who file asylum applications may grow over time. For example, DHS filed 706,640 new removal cases in FY2022—a record high. Many of those individuals who intend to seek asylum may have yet to file an application.
The number of asylum applications pending in immigration courts has grown substantially in recent years (Figure 2). From FY2008 to FY2017, the defensive proportion of pending applications increased relative to the affirmative proportion (from 28% in FY2008 to 82% in FY2017). Since then, the proportion of defensive applications has fluctuated slightly but defensive applications have remained the majority of pending asylum applications (76% at the end of FY2023 Q1).
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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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, January 16, 2023. Notes: *FY2023 through Q1 only.
Among all pending asylum applications in immigration courts, approximately 80% of applicants are from the following 10 countries: Guatemala, Honduras, El Salvador, Mexico, Venezuela, Cuba, India, Ecuador, Brazil, and Nicaragua (as of November 2022).
Figure 3. Pending Asylum Applications by Country of Origin
(Based on 787,196 applications through November 2022)
Source: Transactional Records Access Clearinghouse (TRAC) at Syracuse University, Asylum Filings through November 2022, accessed February 2, 2023. Notes: Includes defensive and affirmative asylum applications in immigration courts. TRAC obtains EOIR data through requests made under the Freedom of Information Act (FOIA).
Asylum Outcomes in Immigration Courts
EOIR publishes asylum decision rates that include both defensive asylum applications and affirmative asylum applications referred by USCIS, based on a sum of four possible outcomes: grants, denials, administrative closures, and “other” (cases that were abandoned, withdrawn, or
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not adjudicated), as presented in Table 1.38 Other observers have calculated grant rates based on the number of relief grants divided by the sum of relief grants and denials only.39 Note that some respondents denied asylum may have been granted other forms of relief or protection from removal.
During the last 15 fiscal years (FY2008-FY2022), based on the total sum of outcomes, the annual asylum grant rate has ranged from 14.17% (FY2022) to 31.35% (FY2011), and the denial rate has ranged from 16.74% (FY2022) to 54.49% (FY2020).
The rates of administrative closures and other outcomes also fluctuated during this period, corresponding with shifting agency guidance for this docket management tool (administrative closure) under different administrations.40 In FY2022, 56.31% of case outcomes were designated “other,” the highest rate during the period examined. This outcome includes terminated and dismissed proceedings,41 which can occur, for example, because a respondent filed a motion to terminate the proceedings based on substantive or procedural grounds, DHS moved to dismiss charges against the respondent (e.g., as a matter of prosecutorial discretion), or proceedings were dismissed by the IJ (e.g., because DHS failed to file the NTA in immigration court).42
The consequences for an applicant whose asylum outcome is designated “other” may vary. In circumstances in which a case is dismissed or terminated, applicants may be able to remain in the United States. In other instances, an “other” outcome may include cases in which the respondent has withdrawn his or her application for asylum or failed to abide by the deadlines set by the IJ and may be ordered removed.
Table 1. Asylum Outcomes, FY2008-FY2022
Administrative
“Other”
Total
Fiscal Year
Grant Rate
Denial Rate
Closure Rate
Rate
Outcomes
2008
23.66%
31.15%
6.37%
38.82%
36,903
2009
23.92%
28.48%
6.37%
41.23%
34,717
2010
25.34%
25.95%
10.26%
38.45%
32,230
2011
31.35%
29.70%
4.55%
34.40%
31,350
2012
30.55%
24.95%
14.25%
30.25%
34,114
2013
24.93%
22.73%
25.32%
27.03%
38,799
2014
22.85%
24.67%
25.42%
27.07%
37,398
2015
18.70%
20.36%
35.61%
25.33%
43,178
38 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-adjudication-statistics.
39 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/.
40 For more information, see the “Docket Management and Administrative Closure” section in CRS Report R47077, U.S. Immigration Courts and the Pending Cases Backlog.
41 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. 42 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, The Biden Administration’s Immigration
Enforcement Priorities: Background and Legal Considerations. For more information on DHS failures to file NTAs in 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
15.81%
21.37%
39.40%
23.42%
54,706
2017
19.66%
32.83%
20.32%
27.19%
53,533
2018
20.69%
41.75%
3.29%
34.26%
63,479
2019
20.62%
49.55%
0.14%
29.68%
91,451
2020
19.13%
54.49%
0.63%
25.75%
76,113
2021
16.06%
30.64%
6.36%
46.94%
46,071
2022
14.17%
16.74%
12.77%
56.31%
158,199
Source: 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 for each fiscal year divided by the total outcomes for the fiscal year.
Author Information
Holly Straut-Eppsteiner
Analyst in Immigration Policy
Disclaimer
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 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 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 its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the permission of the copyright holder if you wish to copy or otherwise use copyrighted material.
Congressional Research Service
R47504 · VERSION 2 · UPDATED
9
The high volume of asylum applications filed relative to EOIR's adjudicatory capacity has led to a large number of pending cases (backlog), which is part of the broader backlog of removal proceedings (approximately 3.8 million). EOIR had 2,424,061 pending asylum applications as of the end of FY2025, down slightly from the end of FY2024 (2,472,766) (Figure 2).
Figure 2. Pending Asylum Applications, FY2015-FY2025
|
Source: EOIR, "Total Asylum Applications," Adjudication Statistics, November 18, 2025.
Notes: Includes defensive and affirmative asylum applications.
|
From FY2021-FY2023, more than half (58%) of asylum applications were filed by nationals of Venezuela, Cuba, Honduras, Guatemala, Colombia, Nicaragua, and Mexico (Figure 3).
Figure 3. Defensive Asylum Applications Filed by Country of Origin, FY2021-FY2023
(based on 838,490 total applications)
|
Source: Department of Homeland Security, Office of Homeland Security Statistics, Asylees: 2023, Table 1c.
|
Asylum Outcomes in Immigration Courts
EOIR publishes data on asylum outcomes that include both defensive asylum applications and affirmative asylum applications referred by USCIS. Reported outcomes include total annual numbers in the following categories: grants, denials, abandonments, not adjudicated, withdrawn, and administrative closure. CRS calculated outcome rates based on the sum total of outcomes in each fiscal year (Table 1). Abandonments, not adjudicated, and withdrawn are collapsed into an "Other" category in the table.
Since FY2015, the annual asylum grant rate has ranged from 9.9% (FY2025) to 20.7% (FY2018), and the denial rate has ranged from 14.3% (FY2024) to 54.5% (FY2020). The rates of administrative closures fluctuated during this period, corresponding with shifting agency guidance for this docket management tool under different administrations.53
Since FY2021, the most common outcome has fallen in the "Other" category. This outcome includes terminated and dismissed proceedings, which can occur, for example, because a respondent filed a motion to terminate the proceedings based on substantive or procedural grounds, DHS moved to dismiss charges against the respondent, or proceedings were dismissed by the IJ (e.g., because DHS failed to file the NTA in immigration court).54
Table 1. Asylum Outcomes, FY2015-FY2025
|
Fiscal Year
|
Grant Rate
|
Denial Rate
|
Administrative Closure Rate
|
Other Rate
|
Total Outcomes
|
|
2015
|
18.7%
|
20.3%
|
35.6%
|
25.3%
|
43,182
|
|
2016
|
15.8%
|
21.4%
|
39.4%
|
23.4%
|
54,712
|
|
2017
|
19.7%
|
32.8%
|
20.3%
|
27.2%
|
53,544
|
|
2018
|
20.7%
|
41.7%
|
3.3%
|
34.3%
|
63,474
|
|
2019
|
20.6%
|
49.5%
|
0.1%
|
29.7%
|
91,436
|
|
2020
|
19.1%
|
54.5%
|
0.6%
|
25.8%
|
76,130
|
|
2021
|
16.1%
|
30.6%
|
6.4%
|
47.0%
|
46,114
|
|
2022
|
14.2%
|
16.7%
|
12.8%
|
56.3%
|
158,608
|
|
2023
|
14.4%
|
15.6%
|
9.0%
|
61.0%
|
222,224
|
|
2024
|
12.0%
|
14.3%
|
7.7%
|
66.1%
|
270,174
|
|
2025
|
9.9%
|
30.8%
|
5.2%
|
54.1%
|
267,284
|
Source: CRS analysis of EOIR, "Asylum Decisions," Adjudication Statistics, November 18, 2025.
Notes: "Grant Rate", "Denial Rate," and "Administrative Closure Rate" are each calculated as a percentage of the total outcomes for each fiscal year. "Other Rate" includes applications that were abandoned, withdrawn, and otherwise not adjudicated. FY2025 includes first three quarters only.
Figure 4. "Other" Outcomes in FY2025
|
Source: EOIR, "Asylum Decisions," Adjudication Statistics, July 31, 2025.
|
In FY2025, 54.1% of case outcomes were "Other" outcomes, the highest rate during the period examined. About 54% of those were applications coded "not adjudicated" (Figure 4), which likely includes cases that were dismissed or terminated. The consequences for a respondent whose application is not adjudicated may vary. In circumstances in which a case is dismissed or terminated, applicants may be able to remain in the United States; for example, when DHS dismisses cases not deemed a priority as a form of prosecutorial discretion. In other instances, individuals with dismissed cases may be processed for removal by other means. As described previously, in recent months there have been reports of dismissed removal proceedings preceding respondents' placement into expedited removal. "Other" outcomes also include cases in which the respondent has withdrawn his or her application for asylum or failed to abide by the deadlines set by the IJ and may be ordered removed.
Footnotes
| 1.
|
Aliens are persons who are not U.S. citizens or U.S. nationals. INA §101(a)(3); 8 U.S.C. §1101(a)(3).
|
| 2.
|
INA §208(a); 8 U.S.C. §1158(a).
|
| 3.
|
INA §§239, 240; 8 U.S.C. §§1229, 1229a.
|
| 4.
|
For more information on affirmative asylum, see CRS Report R48249, What Is Affirmative Asylum?.
|
| 5.
|
Asylum officers within DHS's U.S. Citizenship and Immigration Services have initial jurisdiction over asylum applications filed by unaccompanied alien children, even when those children are in removal proceedings. 8 U.S.C. §1158(b)(3)(C). For more information, see CRS Report R43599, Unaccompanied Alien Children: An Overview
|
| 6.
|
INA §208(b)(B)(i); 8 U.S.C. §1158(b)(B)(i).
|
| 7.
|
8 U.S.C. §1158(b)(1)(A) states, "The Secretary of Homeland Security or the Attorney General may grant asylum to an alien who has applied for asylum in accordance with the requirements and procedures established by the Secretary of Homeland Security or the Attorney General under this section" if the alien meets the definition of a "refugee" under 8 U.S.C. §1101(a)(42)(A).
|
| 8.
|
Authorities for such restrictions include 8 U.S.C. §1158(b)(2)(C), "The Attorney General may by regulation establish additional limitations and conditions, consistent with this section, under which an alien shall be ineligible for asylum" and §1158(d)(5)(B), "The Attorney General may provide by regulation for any other conditions or limitations on the consideration of an application for asylum not inconsistent with this chapter."
|
| 9.
|
EOIR, "Total Asylum Applications," Adjudication Statistics, July 31, 2025.
|
| 10.
|
USCIS refers cases to EOIR when it finds an applicant ineligible for asylum and the applicant does not have a lawful status.
|
| 11.
|
For more information, see CRS Report R47077, U.S. Immigration Courts and the Pending Cases Backlog.
|
| 12.
|
INA §212; 8 U.S.C. §1182.
|
| 13.
|
INA §237; 8 U.S.C. §1227.
|
| 14.
|
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 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 Report R47343, U.S. Border Patrol Apprehensions and Title 42 Expulsions at the Southwest Border: Fact Sheet.
|
| 15.
|
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 IF11357, Expedited Removal of Aliens: An Introduction and CRS Report R45314, Expedited Removal of Aliens: Legal Framework.
|
| 16.
|
DHS, "Designating Aliens for Expedited Removal," 90 Federal Register 8139, January 24, 2025. For more information about the expanded use of expedited removal, see CRS Legal Sidebar LSB10336, The Department of Homeland Security's Authority to Expand Expedited Removal.
|
| 17.
|
For more information, see CRS Report R48078, Credible Fear and Defensive Asylum Processes: Frequently Asked Questions.
|
| 18.
|
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 (citing Holmes v. Amerex Rent-a-Car, 180 F.3d 294, 297 (D.C. Cir. 1999)).
|
| 19.
|
INA §240; 8 U.S.C. §1229a. For more information, see CRS In Focus IF11536, Formal Removal Proceedings: An Introduction and CRS Infographic IG10022, Immigration Court Proceedings: Process and Data.
|
| 20.
|
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 and CRS Insight IN12588, Immigration Court Legal Access Programs: Terminations and Related Litigation.
|
| 21.
|
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 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, At What Rate Do Noncitizens Appear for Their Removal Hearings? Measuring In Absentia Removal Order Rates.
|
| 22.
|
INA §208(d)(4)(A), INA §208(d)(6).
|
| 23.
|
8 C.F.R. §208.20.
|
| 24.
|
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 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 removal, see CRS Report R47077, U.S. Immigration Courts and the Pending Cases Backlog, Table 3.
|
| 25.
|
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," Immigration Law Advisor, May 2013.
|
| 26.
|
For more information about administrative closure, including its use under different administrations, see "Docket Management and Administrative Closure" in CRS Report R47077, U.S. Immigration Courts and the Pending Cases Backlog.
|
| 27.
|
Benjamine C. Huffman, Acting Secretary, DHS, "Guidance Regarding How to Exercise Enforcement Discretion," memorandum, January 23, 2025.
|
| 28.
|
See for example, Immigrant Advocates Response Collaborative v. United States Department of Justice, Class Action Complaint, in the United States District Court for the District of Columbia, Case No. 25-cv-2279. The Trump Administration's expansion of expedited removal has been subject to litigation. For more information, see CRS Legal Sidebar LSB10336, The Department of Homeland Security's Authority to Expand Expedited Removal.
|
| 29.
|
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 protection under CAT.
|
| 30.
|
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. See INA §208(a)(2)(B).
|
| 31.
|
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 LSB10816, An Overview of the Statutory Bars to Asylum: Limitations on Granting Asylum (Part Two).
|
| 32.
|
Sirce E. Owen, Acting Director, EOIR, "Pretermission of Legally Insufficient Applicants for Asylum," PM 25-28, April 11, 2025.
|
| 33.
|
A practice advisory published by the National Immigration Project and Center for Gender and Refugee Studies reports varied outcomes associated with the memorandum, as reported by immigration court practitioners, including judges advising counsel that the application is deficient and requesting them to add information in some cases and ordering respondents removed in others. National Immigration Project and Center for Gender and Refugee Studies, "Practice Advisory: Fighting for a Day in Court: Understanding and Responding to Pretermission of Asylum Applications," updated August 27, 2025.
|
| 34.
|
INA §241(b)(3); 8 U.S.C. §1231(b)(3).
|
| 35.
|
8 C.F.R. §208.16; 8 C.F.R. §208.18.
|
| 36.
|
For more information, see CRS Report RL32221, Visa Waiver Program.
|
| 37.
|
8 C.F.R. §208.2.
|
| 38.
|
EOIR, Immigration Court Practice Manual, Chapter 7.4, "Limited Proceedings." For more information, see CRS In Focus IF11736, Reinstatement of Removal Orders: An Introduction.
|
| 39.
|
This report covers restrictions implemented under the second Trump administration only. For information about asylum restrictions during the first Trump Administration, see archived CRS Legal Sidebar LSB10337, Asylum Bar for Migrants Who Reach the Southern Border through Third Countries: Issues and Ongoing Litigation.
|
| 40.
|
Other than the applicant's country of citizenship, nationality, or, if stateless, last residence.
|
| 41.
|
At the time, special parole processes were available for Cubans, Haitians, Nicaraguans, and Venezuelans. For more information, see CRS Report R46570, Immigration Parole.
|
| 42.
|
DHS and EOIR, "Circumvention of Lawful Pathways," 88 Federal Register 31314-31452, May 16, 2024.
|
| 43.
|
Proclamation 10773, "Securing the Border," 89 Federal Register 48487-48493, June 7, 2024.
|
| 44.
|
DHS and EOIR, "Securing the Border," 89 Federal Register 48710-48772, June 7, 2024.
|
| 45.
|
This refers to appointments under the former CBP One system. For more information, see CRS In Focus IF13030, The CBP Home Mobile Application and "Self-Departure".
|
| 46.
|
The Trump Administration has not rescinded "Securing the Border" and continues to classify enforcement encounters under the "Securing the Border" label. See CBP, "Custody and Transfer Statistics," https://www.cbp.gov/newsroom/stats/custody-and-transfer-statistics.
|
| 47.
|
Proclamation 10888, "Guaranteeing the States Protection Against Invasion," 90 Federal Register 8333-8336, January 29, 2025.
|
| 48.
|
Policy guidance issued by U.S. Border Patrol indicates that unaccompanied children covered by the Trafficking Victims Protection Reauthorization Act of 2008 are not subject to the proclamation. Information obtained from a court filing in Refugee and Immigrant Center for Education and Legal Services v. Noem (1:25-cv-00306), email from U.S. Border Patrol Headquarters to Southwest Border Sectors, February 4, 2025.
|
| 49.
|
Information obtained from a court filing in Refugee and Immigrant Center for Education and Legal Services v. Noem (1:25-cv-00306), email from U.S. Border Patrol Headquarters to Southwest Border Sectors, February 4, 2025. The document does not address eligibility for screening for withholding of removal under the INA.
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| 50.
|
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 archived CRS Report R47343, U.S. Border Patrol Apprehensions and Title 42 Expulsions at the Southwest Border: Fact Sheet.
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| 51.
|
The earliest publicly available data goes back to 1996. EOIR, Statistical Yearbook, various years, and Adjudication Statistics, July 2025. Data disaggregating defensive filings and affirmative referrals are available since FY2000.
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| 52.
|
For enforcement encounters data since FY2022, see U.S. Customs and Border Protection, Nationwide Encounters, https://www.cbp.gov/newsroom/stats/nationwide-encounters.
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| 53.
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For more information, see the "Docket Management and Administrative Closure" section in CRS Report R47077, U.S. Immigration Courts and the Pending Cases Backlog.
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| 54.
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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, The Biden Administration's Immigration Enforcement Priorities: Background and Legal Considerations. For more information on DHS failures to file NTAs in immigration court, see archived CRS Insight IN12046, Migrant Arrivals at the Southwest Border: Challenges for Immigration Courts.
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