---
title: Immigration Asylum Claims
description: An overview of the legal standards and requirements for asylum claims in the United States.
keywords: [asylum, immigration, refugee, persecution, credible fear]
category: law
---

## Introduction to Asylum Claims

The Immigration and Nationality Act (INA) provides for the granting of asylum to individuals who are unable or unwilling to return to their home country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42). Asylum is a discretionary form of relief that, if granted, allows the applicant to remain lawfully in the United States and potentially obtain lawful permanent resident status. See INA § 208, 8 U.S.C. § 1158.

To establish eligibility for asylum, an applicant must demonstrate that they meet the definition of a "refugee" under the INA. This requires showing that they have suffered past persecution or have a well-founded fear of future persecution on account of a protected ground. See INS v. Cardoza-Fonseca, 480 U.S. 421, 440-41 (1987). The applicant bears the burden of proof in establishing their eligibility. 8 C.F.R. § 208.13(a).

## Legal Standards for Asylum

The standard of proof for asylum is a "well-founded fear of persecution." This is a lower standard than the "clear probability" of persecution required for withholding of removal. INS v. Stevic, 467 U.S. 407, 424-25 (1984). To establish a well-founded fear, the applicant must demonstrate a reasonable possibility of suffering such persecution if returned to their home country. 8 C.F.R. § 208.13(b)(2).

The persecution alleged must be on account of one of the five protected grounds: race, religion, nationality, membership in a particular social group, or political opinion. See INA § 101(a)(42), 8 U.S.C. § 1101(a)(42). The persecutor must be the government or an entity the government is unable or unwilling to control. See Avetova-Elisseva v. INS, 213 F.3d 1192, 1196 (9th Cir. 2000).

In evaluating the well-founded fear, the adjudicator must consider the applicant's subjective fear as well as whether that fear is objectively reasonable. See INS v. Cardoza-Fonseca, 480 U.S. at 431. Factors such as the applicant's credible testimony, country conditions reports, and other corroborating evidence will be considered. 8 C.F.R. § 208.13(a).

## Burden of Proof and Credibility Determinations

The applicant bears the burden of proving eligibility for asylum by showing that they meet the definition of a refugee under the INA. 8 C.F.R. § 208.13(a). This requires the applicant to provide credible, persuasive, and specific evidence. Matter of Mogharrabi, 19 I&N Dec. 439, 445 (BIA 1987).

Credibility determinations are based on the totality of the circumstances, including the applicant's demeanor, candor, responsiveness, the plausibility of the applicant's account, and any inconsistencies or omissions in the applicant's statements. INA § 208(b)(1)(B)(iii), 8 U.S.C. § 1158(b)(1)(B)(iii). An adverse credibility finding must be supported by specific and cogent reasons. See Shrestha v. Holder, 590 F.3d 1034, 1042 (9th Cir. 2010).

If the applicant is found not credible, they may still establish eligibility for asylum through objective evidence of a well-founded fear of persecution. See 8 C.F.R. § 208.13(a). However, an adverse credibility finding can significantly undermine the applicant's case.

## Establishing a Nexus to a Protected Ground

In addition to demonstrating a well-founded fear of persecution, the applicant must also show that the persecution is "on account of" one of the five protected grounds: race, religion, nationality, membership in a particular social group, or political opinion. INA § 101(a)(42), 8 U.S.C. § 1101(a)(42).

The applicant must provide evidence that the persecutor's motivation is, at least in part, due to the applicant's possession of a protected characteristic. See INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992). Direct evidence of the persecutor's motives is not required, and the applicant may rely on circumstantial evidence. Id.

Establishing membership in a particular social group can be particularly challenging, as the group must be defined with particularity and the applicant must show that the group is socially distinct within the society. See Matter of M-E-V-G-, 26 I&N Dec. 227, 237 (BIA 2014).

## Discretionary Factors and Bars to Asylum

Even if an applicant establishes eligibility for asylum, the immigration judge or asylum officer has discretion to deny asylum based on adverse factors, such as the applicant's criminal history, ties to terrorist organizations, or evidence of fraud or misrepresentation in the application. See INA § 208(b)(2), 8 U.S.C. § 1158(b)(2).

Additionally, there are certain statutory bars to asylum, including if the applicant: (1) firmly resettled in another country prior to arriving in the United States, (2) participated in the persecution of others, (3) was convicted of a particularly serious crime, (4) poses a danger to the security of the United States, or (5) was firmly resettled in another country. INA § 208(b)(2)(A), 8 U.S.C. § 1158(b)(2)(A).

If asylum is denied, the applicant may still be eligible for the alternative relief of withholding of removal or protection under the Convention Against Torture. However, the standards for these forms of relief are more stringent than for asylum.

## Conclusion

Asylum claims in the United States involve a complex legal framework with specific requirements and standards of proof. Applicants must demonstrate that they meet the definition of a "refugee" under the INA and that they have a well-founded fear of persecution on account of a protected ground. The burden of proof is on the applicant, who must provide credible, persuasive, and specific evidence to support their claim.

Even if an applicant establishes eligibility, the immigration judge or asylum officer has discretion to deny asylum based on adverse factors or statutory bars. Understanding the nuances of asylum law is crucial for both applicants and legal practitioners navigating the immigration system.