FAQs
Q: What is the ABA Commission on Immigration?
The ABA Commission on Immigration (COI) directs the ABA’s efforts to ensure fair treatment and full due process rights for immigrants, asylum-seekers and refugees within the United States. COI advocates for statutory and regulatory modifications in law and governmental practice consistent with ABA policy. Some of our greatest concerns include the erosion of due process safeguards, the growing reliance on detention and harmful detention conditions, and the lack of access to counsel and legal information for individuals in immigration proceedings, including vulnerable groups such as unaccompanied children and people held in detention.
To provide reliable legal information, COI operates a free, national telephonic information hotline that serves noncitizens who are detained in approximately 200 Immigration and Customs Enforcement (ICE) detention facilities nationwide. The hotline is an important resource for individuals in detention to obtain information on the removal process, eligibility for bond and parole, and various forms of legal relief. COI’s services help advance court efficiency by offering reliable legal information to people in removal proceedings, allowing them to better prepare for their court proceedings.
COI also offers opportunities for volunteers to make an impact through pro bono services. The pro bono team prepares volunteers with the knowledge and support they need to make a difference so that they can provide quality services to noncitizens. COI creates written resources and hosts webinars with timely information about trends, court decisions, and pertinent developments to educate members of the legal community and the broader public.
The COI also hosts three offsite projects: the South Texas Pro Bono Asylum Representation Project (ProBAR) in the Texas Rio Grande Valley, the Immigration Justice Project (IJP) in San Diego, California, and the Children’s Immigration Law Academy (CILA) in Houston, Texas. These projects offer legal training and technical assistance to immigration advocates and legal resources and direct services to noncitizens in immigration proceedings.
Q: Is COI Impacted by the Federal Funding Stop Work Orders?
Litigation Update Rescinding LOP Stop Work Order:
On February 2, 2025, the Department of Justice rescinded the stop work order imposed on the Legal Orientation Program (“LOP”), and three related programs mentioned below. This action was related to a temporary restraining order entered in the case of New York et al v. Trump, No. 25-cv-39-JJM-PAS (D.R.I.), ECF No. 50 (Jan. 31, 2025), challenging the pause of all federal assistance directed by the Office of Management and Budget (“OMB”). This situation is fluid and may also be impacted by a lawsuit brought by nine legal service providers filed in the District Court for the District of Columbia Amica Center for Immigrant Rights, et al v. U.S. Department of Justice, et al, 1:25-cv-00298, (D.D.C.) (Jan. 31, 2025), requesting a temporary restraining order and a preliminary injunction against stop work orders in the LOP and related legal access programs.
Initial LOP Stop Work Order Imposed:
On January 22, 2025, the Department of Justice (DOJ) announced a “stop work” order on four key legal access programs implemented by attorneys and paralegals who provide legal assistance to adults, families, and children in removal proceedings. DOJ issued the stop work order pursuant to the Trump administration’s executive order directing a review and possible audit of federal funding to non-governmental organizations supporting or providing services to “removable or illegal aliens.” The oldest of the four affected programs is the Legal Orientation Program (LOP) for detained adults, which has been funded by Congress since 2003. In addition to LOP, the suspension impacted the Immigration Court Helpdesk (ICH), the Family Group Legal Orientation Program (FGLOP), and the Counsel for Children’s Initiative (CCI).
Three of these four programs inform unrepresented immigrants and asylum-seekers about their rights and responsibilities in immigration court, resulting in improved judicial efficiency and decreased detention costs. Without the services these programs provide, some people will remain detained despite having no legal relief, and others will be deported despite being eligible to remain in the United States. These programs help to ensure minimum due process by providing immigrants with access to reliable legal information including their legal rights and responsibilities, and a way to exercise those rights, if eligible.
Currently, there are about 40,000 people held in Immigration and Customs Enforcement (ICE) custody in the United States, a number that is expected to rise under the current administration. Only about 30% of people in removal proceedings are represented, and that percentage is lower for those in detention. The legal access programs provide a measure of dignity and fairness in a system where the respondent may not speak English and is opposed in court by a trained ICE trial attorney.
ABA Impacted LOP Programs:
The ABA runs legal access programs at the South Texas Pro Bono Asylum Representation Project (ProBAR) in Harlingen, Texas, the Immigration Justice Project (IJP) in San Diego, California, and through its national Detention Information Line. These programs help thousands of individuals each year. During the temporary halt, children, adults, and families, including people in deportation proceedings and detention, lost access to crucial legal information, pro se assistance, referrals to pro bono counsel, and clarity on their legal process—all of which also help immigration judges adjudicate cases more efficiently.
Q: Which government agencies are responsible for what aspects of the U.S. Immigration system?
The United States immigration system is complex and involves several different federal agencies, including the Department of Homeland Security (DHS), the Department of Justice (DOJ), and the Department of Health and Human Services (HHS).
DHS was established in 2003 and is responsible for securing the United States, including through the enforcement of immigration laws. There are several key immigration agencies within DHS:
U.S. Customs and Border Protection (CBP), which enforces immigration laws at and near the border, and processes people who enter the United States at ports of entry;
U.S. Immigration and Customs Enforcement (ICE), which enforces immigration laws in the interior of the United States. ICE also monitors noncitizens in removal proceedings, and employs lawyers who represent the government in immigration court;
U.S. Citizenship and Immigration Services (USCIS) which processes and decides certain affirmative immigration applications, such as humanitarian visas and employment authorization, as well as naturalization applications. USCIS also conducts credible fear interviews and asylum interviews mostly for noncitizens who are not in removal proceedings.
DOJ houses the Executive Office for Immigration Review (EOIR), which includes the Office of the Chief immigration judge and the Board of Immigration Appeals, sub-agencies that administer the immigration court system. Under delegated authority from the Attorney General, EOIR conducts immigration court proceedings, adjudicates individual immigration cases, provides appellate review, and holds administrative hearings.
HHS Office of the Administration for Children & Families includes the Office of Refugee Resettlement (ORR)which manages the custody and care of unaccompanied children in the United States. Unaccompanied children are youth under the age of 18 who have no lawful immigration status in the United States and no parent or legal guardian in or available to provide care and physical custody in the United States. Unaccompanied children are usually referred to ORR after being apprehended by or transferred to immigration authorities.
Q: What terminology should I use when referring to noncitizens?
The term “alien” has been used throughout U.S. immigration law and history, dating back to the Alien and Sedition Acts of 1798. In 1976, Supreme Court Justice Powell used the term “illegal alien” and in 1986, the term was codified into law by the Immigration Reform and Control Act in 1986. See United States v. Martinez-Fuerte, 428 U.S. 543. During the Biden administration, immigration enforcement agencies were ordered to replace the term “illegal alien” with “undocumented noncitizen.” “Alien” is often considered a dehumanizing label, and the change in terminology was intended to confer dignity on noncitizens.
Frequently the terms “immigrant,” “migrant,” “refugee,” and “asylum-seeker” are used interchangeably, but there are key differences in the meanings of each term:
Immigrants are generally people who choose to move from their home countries to a foreign country with the intention of settling there.
Migrants are those who move around either within their home countries or internationally, and who do not necessarily intend to stay at their destination permanently. “Migrant” is often used as an umbrella term when it is not clear why someone journeyed to a new country or what their status is after arrival.
Refugees are people who flee their home countries due to war, conflict, or violence and seek protection outside of their country of origin. According to U.S. law, refugees are people who are unable or unwilling to return to their country of origin because of a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Importantly, under U.S. law, a “refugee” determination is made before the individual enters the United States.
Asylum-Seekers have fled their homes for the same reasons as refugees, but status has not been conferred on them before their arrival to the U.S.; rather, they must apply for asylum once they have arrived in the U.S. They must demonstrate they have suffered past persecution, or fear that they will suffer future persecution, based upon their race, religion, nationality, membership in a particular social group, or political opinion. If their claim is successful, they become “asylees.”
“Noncitizens” is a factual and inclusive umbrella term for individuals who are not citizens of the United States. The term noncitizens will be used throughout this FAQ.
Q: What are removal proceedings?
Removal proceedings refer to the administrative process by which the United States government determines whether a noncitizen is removable from the United States and if removable, whether they may have a way to remain legally. There are several types of removal proceedings, some are initiated and adjudicated by DHS (examples include expedited removal, reinstatement of removal, stipulated removal) and others are adjudicated through EOIR. Removal proceedings that take place in immigration court involve the noncitizen (i.e., Respondent), any immediate family members whose cases are joined with the noncitizen’s (i.e., derivatives), the attorney representing DHS (the Office of Principal Legal Advisors attorney), and the immigration judge. Respondents have the right to be represented in immigration court proceedings, but there is no right to government-appointed counsel for the indigent.
When a noncitizen is placed into Immigration and Nationality Act (INA) § 240 removal proceedings, it means that an immigration judge will adjudicate their removal proceedings and determine whether they are removable from the United States and if so, whether they qualify for legal relief to remain in the United States. DHS commences these proceedings by issuing a charging document called the Notice to Appear (NTA) that must be properly served on the noncitizen and filed with the immigration court. Noncitizens who are apprehended in the interior of the United States are generally placed into removal proceedings. In addition, at the border, migrants who schedule CBPOne appointments and present themselves at ports of entry are placed in INA § 240 removal proceedings. Individuals who are initially placed in the expedited removal process but pass a credible fear interview are also placed into removal proceedings. Generally, unaccompanied children (UCs) who enter at a port of entry or enter without inspection and are apprehended near the border are also placed into removal proceedings rather than expedited removal.
Removal proceedings offer some procedural protections to migrants, including the right to be represented (at no expense to the government), the right to present evidence and to cross-examine government witnesses, the right to apply for legal relief for those who qualify, and the right to appeal an adverse decision to the Board of Immigration Appeals (BIA). Migrants in removal proceedings also have the right to hire counsel at their own expense; counsel will not be provided by the government. At the conclusion of removal proceedings, a migrant may be granted relief from removal and be allowed to remain in the United States with legal status, such as asylum or cancellation of removal. Or, a migrant may instead be ordered removed. Some individuals who are ordered removed may be released after a certain amount of time if the government cannot deport them; this is usually done under an Order of Supervision (OSUP), which is a way for ICE to monitor their whereabouts outside of detention, until their removal is effectuated. Migrants who depart from the United States after receiving a removal order under INA § 240 are prohibited from returning lawfully for ten years. If someone returns unlawfully to the United States after being removed under INA § 240 proceedings, they are subject to federal criminal charges for illegal re-entry.
Q: What is Expedited Removal?
Expedited removal is a process by which a low-level DHS officer can rapidly remove certain noncitizens without a full hearing before an immigration judge. Currently, a noncitizen may be subject to expedited removal if they entered the U.S. by land without inspection (in other words, they entered between ports of entry and were not “admitted” or “paroled”) and are apprehended within 100 miles of the U.S. border within 14 days of entering the country, or if they entered by sea without inspection and have been in the U.S. for less than two years. Immigration officials may apply expedited removal to any noncitizen who has entered the United States without inspection and cannot establish that they have been physically present in the country for at least two years.
Individuals in expedited removal have very limited legal protections. There is no right to counsel, no right to a hearing, and extremely limited rights to review an expedited removal order. Individuals ordered removed through expedited removal are subject to a five-year ban on reentry to the United States.
If a migrant subject to expedited removal indicates that they intend to apply for asylum or expresses a fear of persecution or torture in their country of removal, the government must refer the individual for a Credible Fear Interview (CFI). The CFI process is explained in the “What is a Credible Fear Interview?” section, below.
The ABA Commission on Immigration’s Primer: Immigration Enforcement Mechanisms at the U.S. Border has more detailed information about expedited removal and how it has been implemented under various administrations.
Q: What is a Credible Fear Interview (CFI)?
If an individual in expedited removal states that they are afraid to return to their home country, they must be referred for a Credible Fear Interview (CFI). A CFI is an evaluation conducted by an asylum officer from USCIS to determine whether a migrant has a “credible fear” of persecution or torture if removed to their home country. The results of the CFI determine whether an individual will be allowed to apply for certain protections in immigration court or be removed from the United States under and expedited removal order.
Historically, to establish a credible fear of persecution a migrant had to show a “significant possibility” of qualifying for asylum, withholding of removal, or protection under the Convention Against Torture. Under the Biden administration’s Securing the Border executive order (enacted in June 2024), the standard has become a “reasonable probability,” which is a higher burden to meet.
Most asylum-seekers undergo CFIs while detained, either by ICE or CBP, where they may be under emotional distress, are unlikely to have an attorney, and are held in congregate, jail-like settings. The interviews are often conducted by telephone or video, which may inhibit the asylum-seeker’s understanding of the credible fear process and the questions they are being asked by the asylum officer. Most individuals are not able to speak to an attorney before the CFI and are unaware of the legal standard they must meet to pass the interview.
If an individual receives a negative credible fear determination, they may ask for an immigration judge to review the result. If the immigration judge affirms the negative determination, the individual will be removed from the United States.
If an individual receives a positive credible fear determination, they will be referred to § 240 removal proceedings and will be eligible to file an application for asylum, withholding of removal, or Convention Against Torture protection with the immigration court.
The ABA Commission on Immigration’s Primer: Immigration Enforcement Mechanisms at the U.S. Border has more detailed information on CFIs and how the process has changed under various presidential rules and executive orders.
Q: What is a Reasonable Fear Interview (RFI)?
Noncitizens who have entered the United States without authorization after having been ordered removed in the past will generally be subject to an accelerated removal process called reinstatement of removal. In this process, the prior order of removal will be reinstated from its original date and is not subject to reopening or review, and arrangements are made for subsequent removal. Individuals in reinstatement of removal proceedings are not eligible for discretionary forms of relief under the INA, including asylum, but they may not be returned to a country where they would “more likely than not” face persecution or torture.
As a result, where a noncitizen subject to a reinstated removal order expresses fear of return to their home country, they are entitled to a Reasonable Fear Interview by an asylum officer to evaluate whether they may qualify for protection under the Convention Against Torture or for withholding of removal. A Reasonable Fear Interview (RFI) is similar to a CFI, but is generally a higher standard of proof where a migrant must show a “reasonable possibility” that they will be persecuted in the future on account of race, religion, nationality, membership in a particular social group, or political opinion or a reasonable possibility they will be tortured in the country of removal.
If an individual receives a negative reasonable fear determination, they may seek immigration judge review. If the immigration judge affirms the negative determination, the individual will be removed from the United States, usually quite quickly. Migrants who are removed under a reinstated removal order are subject to a permanent bar to reentry unless they apply for and are granted a waiver more than ten years after the date of their last departure.
If an individual receives a positive reasonable fear determination, they will be referred to withholding-only removal proceedings and will be eligible to file an application for withholding of removal or Convention Against Torture protection with the immigration court.
Q: Who is an Unaccompanied Child?
Under the Homeland Security Act of 2002, an unaccompanied child is defined as an individual who is:
under 18 years of age;
without lawful immigration status; and
with no parent or legal guardian in the United States available to provide care and physical custody.
When a child arrives at a port of entry or is apprehended crossing the border, CBP agents transfer the child to a temporary holding facility where they process the child and determine whether they meet the legal definition of an unaccompanied child. The legal definition does not recognize nonparent caregivers or family members that sometimes accompany a child to the United States. These nonparent family members or caregivers can sometimes be the people who have raised the child for years in the parents’ absence. Unaccompanied children must be transferred to an Office of Refugee Resettlement (ORR) shelter within 72 hours if they are from a non-contiguous country. Children from contiguous countries, typically Mexico, go through a separate screening process. ORR is responsible for the safety and care of unaccompanied children, as well as reunification of the child with a suitable sponsor to care for the child while they undergo removal proceedings.
Unaccompanied children have certain legal protections, including that they are not currently subject to expedited removal and instead are generally entitled to go through removal proceedings, where they can present their case and seek any legal relief for which they are eligible. Unaccompanied children who apply for asylum can seek asylum in the first instance in a non-adversarial process before DHS’s Asylum Office, rather than in an adversarial immigration court hearing.
The above information is from the ABA Children’s Immigration Law Academy (CILA) Fact Sheet on Unaccompanied Children at the Border. CILA is an expert legal resource center supporting advocates across the country working with immigrant children. CILA’s resources are available here after the creation of a free online account.
Q: What happens to family groups at the border?
Generally, when CBP encounters families along the border between ports of entry, they are transported to a U.S. Border Patrol station or other CBP processing facility. Family units, which are defined as groups of two or more noncitizens consisting of a minor or minors accompanied by an adult parent(s) or legal guardian(s), may be detained together, may have one adult family member detained and another adult family member released with the children, or can all be released on their own recognizance. According to the CBP Family Unity Policy, CBP should not routinely separate a minor child from their accompanying noncitizen parent(s) or legal guardian(s), except in certain limited circumstances. This policy is consistent with a 2023 settlement in the matter of Ms. L., et al. v. ICE, et al., a class action filed in 2018 seeking injunctive relief following the separation of parents and children at the U.S.-Mexico border between January 20, 2017, and January 20, 2021. The settlement limits the reasons why parents or legal guardians may be separated from their children during an eight-year period following the effective date of the settlement. The settlement prohibits separations of parents or legal guardians from their minor children, except in certain circumstances, including cases of national security, safety of the child, medical emergencies and certain criminal warrants. Should those circumstances occur, the settlement sets forth procedures for keeping track of the location(s) of separated family members and ensuring that information is shared. The CBP Memorandum on Family Separations Based on an Articulable Threat to the Safety of the Child reviews the initial steps and separation procedures that CBP must follow if there is a reasonable basis to believe that there is an articulable threat to the safety of their child(ren).
CBP also has guidance on maintaining “family groups,” which are comprised of the following adult familial relationships:
Parents and/or legal guardians with their unmarried adult children between the ages of 18-25;
Grandparents with their unmarried adult grandchildren between the ages of 18-25;
Spouses where both individuals are 18 or older; and
Unmarried siblings between the ages of 18-25.
When CBP encounters a family group as defined above and verifies the familial relationships, CBP officers “must record and link all known members of the family group so that the name(s), date(s) of birth, A-number(s) and relationship for other members of the family group are accessible through the designated system of record.”
Q: What happens when someone is arrested by ICE?
CBP and ICE, both of which are part of DHS, apprehend and detain noncitizens in the United States. Generally, CBP operates at or near the U.S. border (including water borders), while ICE arrests and detains noncitizens in the interior of the United States. Individuals apprehended by CBP or ICE may be placed in one of nearly 200 detention facilities across the country and may be held in detention while they await either expedited removal through ICE or removal proceedings in immigration court.
In the interior of the country, ICE officers generally arrest and detain noncitizens during interactions with the criminal justice system or during home or worksite enforcement raids. There are certain locations which historically have been deemed protected areas, where ICE enforcement actions will not occur, including places of religious study, medical or mental health care facilities, schools, and social services establishments (i.e. domestic violence shelters), although this will likely change after January 20, 2025. ICE officers may go to a noncitizen’s home to effectuate an arrest, although they cannot enter a home unless they have a warrant signed by a judge or permission from an adult to enter. Frequently, ICE officers have administrative warrants, which are signed by immigration officials rather than a judge. Administrative warrants do not give ICE the right to enter a private area, like someone’s home or car, without the owner’s consent.
If ICE arrests a noncitizen without a warrant, the agency must make a custody determination and decide whether to place the individual in removal proceedings within 48 hours, unless there is an emergency or other extraordinary circumstance. If a noncitizen is placed in removal proceedings, they may have a right to see a judge and present a defense against deportation. This may depend on whether they already have a removal order against them or how long they have been in the United States. It is likely that after January 20, 2025, expedited removal proceedings may be extended to the full extent of the law, allowing ICE to impose it against anyone who cannot show they have been in the United States for at least two years. Regardless of the type of proceedings, the migrant could be detained and possibly remain detained throughout the pendency of their immigration case. Some people will have the right to seek release either through bond or parole.
If someone already has a prior final removal order entered against them at the time they are apprehended by ICE, they can be removed once the government procures their travel documents and deportation flight.
To locate someone detained by ICE one can check the ICE Online Locator System.
Q: How is someone released from immigration detention?
When someone is placed in immigration detention, certain individuals might be able to apply for “bond” or “parole” to seek release during the pendency of their removal proceedings.
A bond is an amount of money paid to ICE so that an individual can be released from immigration detention. It serves as a guarantee to ensure that the person will comply with their immigration court proceedings. Certain individuals may request a “bond hearing” before an immigration judge, where they can present evidence about why they should be released from detention on bond while their immigration case is pending. At a bond hearing, an immigration judge will evaluate whether the individual is a danger to persons or property, and whether they are a flight risk, meaning someone who is not likely to attend their immigration court hearings. If the judge grants the request for bond, an amount will be set. The lowest amount of bond that can be legally set is $1,500 and there is no maximum amount. The bond payor may request a refund of the bond money after a bond is cancelled, which happens after the immigration proceedings are completed and the conditions of the bond have been met.
Parole is permission to reside in the United States for a finite, temporary period of time. ICE has broad authority to release noncitizens from detention via parole at any time during their immigration hearing process. To request parole, an individual should send a letter to their ICE deportation officer with evidence to prove their identity, that they have a stable address and support from a person or nonprofit willing to take them in and meet their basic needs. They should also show they are not a danger to society and they are not a flight risk. The determination whether to grant parole is made by ICE, not by an immigration judge, and there is no court hearing involved in the parole request process.
Some people are not eligible to seek release, or will be denied release, and may be subject to detention through the entirety of their removal proceedings or until they are removed from the United States.
Q: What are different types of immigration relief?
There are various forms of immigration benefits and relief for which noncitizens might be eligible. Some types of relief create a pathway to legal permanent residency and, eventually, citizenship. Other types of relief are temporary and do not create a pathway to permanent status in the United States. In general, claims for relief can be categorized into the following groups: fear-based, survivor-based, nationality-based and family-based.
Fear-based claims include asylum, withholding of removal, and protections under the Convention Against Torture. These forms of relief can lead to permanent status in the United States and are discussed in more detail under the “What is asylum?” FAQ heading.
Survivor-based claims include Special Immigrant Juvenile (SIJ) classification, U Visas, T Visas, and Violence Against Women Act (VAWA) self-petitions, which are immigration benefits for victims of certain crimes, abuse, or acts of violence. The applications and petitions for these benefits are submitted to USCIS, not to the immigration court. SIJS classification is for youth under the age of 21 who have been abused, abandoned or neglected by one or both parents. U Visas may be granted to victims of certain crimes and certain family members of the crime victims. T Visas may be granted to victims of sex or labor trafficking and certain family members of the trafficking victim. VAWA self-petitions for immigrant classification are for victims who have been abused by a qualifying relative who is a U.S. citizen or lawful permanent resident. Each of these claims could lead to a pathway to a green card (legal permanent residency) and, eventually, citizenship. For more information on survivor-based claims, see this Explainer created by the ABA Commission on Immigration.
Nationality-based claims include Temporary Protected Status (TPS) and the Cuban Adjustment Act. TPS is a short-term benefit for noncitizens who cannot safely return to their home country due to conditions that prevent the home country from adequately handling the noncitizen’s return, such as ongoing armed conflict, environmental disaster, or other extraordinary, temporary circumstances. A country must be designated as TPS-eligible by DHS, in consultation with the Secretary of State. TPS is generally granted for an initial 18-month period for individuals from a TPS-designated country who are already in the United States as of certain dates provided by the government. The temporary designation may be extended indefinitely. A TPS-holder is eligible to apply for a work permit. For more information on TPS, see this Explainer created by the ABA Commission on Immigration.
The Cuban Adjustment Act (CAA) provides a pathway to lawful permanent residence for certain Cuban natives or citizens (and their spouses and minor children) who have been physically present in the United States for at least one year. Eligible applicants generally must have come to the U.S. through an official port of entry and been either admitted or paroled into the country and generally must not have a criminal history or been subject to prior removal orders. For more information on the CAA, see this Explainer created by the ABA Commission on Immigration.
Finally, family-based petitions allow certain relatives of U.S. citizens and lawful permanent residents (LPRs) to apply for green cards (lawful permanent residence) and, eventually, citizenship. For immediate relatives of U.S. citizens who are physically present in the United States (spouses, children under the age of 21, or parents of a citizen child aged 21 and over), visas are generally immediately available. For family preference category relatives (unmarried adult children of U.S. citizens, spouses and unmarried children under age 21 of LPRs, unmarried adult children of LPRs, or brothers and sisters of U.S. citizens who are age 21 and older) visas are subject to numerical caps and the waiting process can be years, depending on the family preference category, priority date, and country of nationality. For more information on family-based petitions, see this Explainer created by the ABA Commission on Immigration.
Q: What is asylum?
Asylum is a discretionary legal status that may be granted to a noncitizen physically present in the United States who fears returning to their home country due to past persecution or a well-founded fear future persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” To demonstrate a well-founded fear of persecution, an applicant must show a reasonable possibility of persecution, which can be as low as a ten percent chance. An asylum-seeker must also show that the government in their home country is unwilling or unable to protect them from harm. The definition of asylum comes from the international definition of “refugee” found in the United Nations 1951 Convention and 1967 Protocol. The United States incorporated this definition into U.S. immigration law through the Refugee Act of 1980; it is codified in section 208 of the Immigration and Nationality Act.
Asylum-seekers may include their spouse and/or unmarried children under 21 years old who are in the United States on their application as “derivatives,” meaning that they would also be granted asylum if the request is granted. When someone is granted asylum, they are called an “asylee.” Asylees can live in the U.S. permanently and are eligible to embark on a pathway to citizenship. In addition, they can apply for their spouse and children who are outside the United States to join them in the United States. Asylees are authorized to work, may apply for an unrestricted Social Security card, and may request permission to travel overseas. They may also be eligible for certain government programs, such as Medicaid or Refugee Medical Assistance.
Withholding of removal and Convention Against Torture (CAT) protections are forms of relief potentially available to someone who has a fear of returning to their home country but is ineligible for asylum. These mandatory protections provide fewer benefits than asylum, and the burden of proof to obtain them is higher, but they are not subject to the same bars as asylum, including the one-year filing deadline and firm resettlement bars.
For more information on asylum, withholding of removal, and CAT protections, see this Explainer created by the ABA Commission on Immigration.
Q: What is the process for applying for asylum?
There are two primary methods of applying for asylum, either “affirmatively” or “defensively.” Regardless of which method is used, a noncitizen is required to apply for asylum within one year of the date they last arrived into the United States (with limited exceptions).
Affirmative asylum is a process available to individuals who are not in removal proceedings (i.e. who do not have a case pending in immigration court). Generally, individuals who apply for affirmative asylum arrived in the U.S. on a valid visa or entered without inspection and were never apprehended by immigration officials.
Affirmative asylum is the process of applying for asylum through USCIS. The decision whether to grant asylum is made by an Asylum Officer (not an immigration judge), after an asylum interview (not a court hearing). The affirmative asylum process is generally considered less adversarial than defensive asylum, as there is no government attorney opposing the applicant in the interview. The Asylum Officer questions the asylum-seeker about their claim and makes a determination. If asylum is denied, the asylum-seeker will be referred to immigration court and placed in removal proceedings. They may renew the request for asylum defensively and present their claim before an immigration judge.
Defensive asylum is the process of seeking asylum for individuals who are in removal proceedings, meaning they have received a Notice to Appear in immigration court. The majority of defensive asylum-seekers arrived to the U.S. at a port of entry or entered without inspection but were apprehended by immigration officials. Many asylum-seekers will be placed in expedited removal and undergo a Credible Fear Interview (CFI) before being placed in removal proceedings.
In immigration court, the noncitizen is called a “respondent.” The respondent presents their claim for asylum before an immigration judge. An attorney from ICE is present to represent the government, and the asylum-seeker may be subject to cross examination. If the request for asylum is denied, the noncitizen will usually be ordered removed, but an immigration judge can grant withholding of removal or deferral of removal even if asylum is denied. Either party may appeal the immigration judge’s decision to the Board of Immigration Appeals (BIA).
The procedure for applying for withholding of removal and CAT protections is the same as applying for asylum, but these protections are only available to noncitizens in removal proceedings. A noncitizen applying for asylum defensively can apply for all three forms of relief at the same time through one application, using Form I-589.
Q: Who is eligible to seek asylum?
Because of turnbacks at ports of entry for most migrants without travel documents, including asylum-seekers, there are currently only two viable ways to enter the United States at the southern border. These are: 1) through an appointment on the CBP One app at a port of entry; or 2) by crossing the border between ports of entry. The new “Securing the Border” (STB) regulation, which subsumes and builds new asylum restrictions onto the 2023 Circumvention of Lawful Pathways rule, imposes harsh consequences on asylum-seekers who cross the border between ports of entry. In practice, those who enter with a CBP One appointment are generally paroled into the United States and placed into full removal proceedings in immigration court where they can apply for asylum or other relief. Those who enter irregularly are typically placed into expedited removal and are generally ineligible for asylum under the new rules.
The Circumvention of Lawful Pathways rule (CLP), often referred to as the “asylum ban,” was implemented in May of 2023 following the lifting of the Title 42 policy. Noncitizens who did not enter the U.S. at a port of entry after obtaining an appointment with the CBP One application must show that they sought and were denied asylum in a transit country that they journeyed through on their way the United States, or else they are not eligible for asylum in the U.S. Some asylum-seekers are exempted or excepted from CLP, including unaccompanied children, Mexican citizens, and individuals who can prove an inability to access the CBP One system.
In June of 2024, President Biden signed a proclamation titled “Securing the border” (STB) which further restricted the asylum process. The policy is frequently referred to as the “asylum shutdown rule.” The policy’s changes to the asylum process include: (1) screening for fear only when a noncitizen independently expresses, or manifests, fear of return (referred to as a “shout test”), as opposed to affirmatively asking about fear of return; (2) raising the standard of proof for credible fear interviews from a “significant possibility” of qualifying for withholding of removal, or protection under the Convention Against Torture (CAT) to a “reasonable probability” of qualifying for the same protections; and (3) rendering noncitizens who enter the United States between ports of entry ineligible for asylum unless they can show “exceptionally compelling circumstances exist.” Other key differences between STB and CLP are that STB does not have an exception for Mexican Nationals or individuals who have been denied protection in a third country.
STB is triggered when the daily number of individuals who cross the southern border outside a port of entry exceeds a weekly average of 2,500, and it remains in effect until that number drops to a weekly average of 1,500 or less. STB is an expansion of the border restrictions imposed by CLP and, when it is in effect, subsumes CLP. Should the weekly average of irregular entries drop to 1,500 or less, CLP and its restrictions remain in effect.
The ABA Commission on Immigration’s Primer: Immigration Enforcement Mechanisms at the U.S. Border has more detailed information on CLP and STB and how these processes impact asylum-seekers.
Q: How can someone get a green card?
“Green cards” refer to U.S. government-issued identification cards that demonstrate an individual’s status as a Lawful Permanent Resident (LPR) of the United States. Green cards expire after 10 years but LPR status never expires. Individuals with LPR status enjoy many benefits and services not afforded to lesser statuses (e.g., asylee, U visa holder, noncitizen) at both federal and state levels.
Importantly, in order to apply to become a U.S. citizen, an individual must first obtain and maintain their LPR status (the exact number of years one must do so depends on the individual’s LPR category), usually for 5 years unless married to a U.S. citizen, then it decreases to 3 years. Not all immigration benefits and relief from removal offer a path to U.S. citizenship. The following are some of the most common pathways through which an individual may be eligible to apply for LPR status, and eventually citizenship:
Family-based case: certain family members of U.S. citizens or LPRs may be eligible for LPR status. The U.S. citizen or current LPR files for the noncitizen, with very limited exceptions. There are two types of family petitions: immediate relatives and family preference categories. When a visa is available, the noncitizen family member may be eligible for LPR status.
Immediate relatives have visas immediately available to them that they need to apply for their LPR status and include:
Spouses of U.S. citizens
Children (under age 21) of U.S. citizens
Parents of a U.S. citizen child (citizen child must be aged 21 or over)
Preference categories have visas that are subject to numerical caps that result in decades-long waits for some categories and include:
Married and unmarried children (who are age 21 or over) of U.S. citizens
Siblings of U.S. citizens
Spouses, children, and unmarried children of LPRs
Employment-based case: certain individuals with desired skills or who want to invest in new U.S. jobs may be eligible for LPR status.
Refugees and asylees: both refugees and asylees must meet the definition of a refugee (INA § 101(a)(42)), meaning that they are seeking protection after fleeing their home country because of persecution or a well-founded fear of future persecution on account of race, religion, nationality, political opinion, or membership in a particular social group. The difference between the two categories is that refugees seek and are processed status outside of the United States while asylees seek and are processed status within the United States. Asylees and refugees who have obtained one year of physical presence in the United States may be eligible for LPR status.
Diversity lottery winners: the U.S. offers a Diversity Immigrant Visa Program where individuals from countries with relatively low levels of immigration may apply for a visa “lottery.” Individuals who win the lottery and meet special eligibility requirements may be eligible for LPR status.
Applying for LPR status is a long process. There are various eligibility requirements, and some individuals will need to apply for special waivers of inadmissibility grounds in order to become LPRs. Not all individuals who are eligible for LPR status can apply for and obtain residency while in the United States. Some individuals, due to category or inadmissibility factors, will need to leave the United States in order to have their case processed. Once someone is granted LPR status, they remain an LPR regardless of when their “green card” expires, until and unless they are placed in removal proceedings and are found to be removable from the United States, generally due to a criminal offense or other violation of the immigration laws.
Q: How do the Trump Administration’s Executive Orders impact the immigration system?
On January 20, 2025, President Trump enacted a series of major reforms to the American immigration system through executive orders. These orders encompass a wide range of policies, including the suspension of the U.S. Refugee Admissions Program, limits on birthright citizenship, plans for mass deportations, and the deployment of military forces to the southern border. Each directive is poised to have significant implications for immigration enforcement, national security, the U.S. humanitarian protection system, and the lives of countless individuals and families across the United States. For direct links to each of the executive orders impacting immigration, please see below.
The ABA Commission on Immigration continues to work strenuously to defend the right to due process for all people including immigrants, asylum-seekers and refugees. If you wish to support the work of the Commission, you can donate here or sign up to volunteer here.
The executive orders impacting immigration are
- Executive Order Initial Rescissions of Harmful Executive Orders and Actions
- Executive Order Protecting the Meaning and Value of American Citizenship
- Executive Order Protecting the American People Against Invasion
- Executive Order Securing Our Borders
- Executive Order Invoking the National Emergencies Act Regarding the Crisis at the Southern Border of the United States
- Executive Order Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats
- Executive Order Designating Cartels and Other Organizations as Foreign Terrorist Organizations and Specially Designated Global Terrorists
- Executive Order on Suspension of Entry at the Southern Border
- Executive Order Clarifying the Military’s Role in Protecting the Territorial Integrity of the United States
- Executive Order Realigning the United States Refugee Admissions Program
- Executive Order Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government
- Executive Order America First Trade Policy
- Executive Order America First Policy Directive to the Secretary of State
If you are looking to stay on top of the most recent updates regarding the enforcement of these executive orders, you can visit the following federal agency media and briefing sites:
- The Department of Homeland Security (DHS) Press Releases (press releases highlighting updates from DHS, including announcements regarding changes to immigration policies and enforcement actions);
- The Federal Register for Updates from the Homeland Security Department: (the official journal of the federal government where new agency rules, proposed rules, and public notices will be published);
- The White House Briefings & Statements: (the official website for the White House containing the most recent executive orders and announcements);
- U.S. Customs and Border Protection (CBP) Media Releases: (press releases highlighting updates from CBP, including how executive orders are being enforced);
- U.S. Immigration and Customs Enforcement (ICE) News Releases and Statements: (press releases highlighting updates from ICE, including how executive orders are being enforced);
- The Executive Office for Immigration Review (EOIR) News and Information: (press releases highlighting updates related to immigration court);
- U.S. Department of Health and Human Services (HHS) News: (press releases highlighting updates from HHS, including on the care and placement of unaccompanied minors and the impact of immigration policies on public health services for immigrant communities);
- U.S. Department of State Press Releases: (press releases highlighting updates from the State Department, including announcements regarding changes to immigration law and policy).