8 USC 1158: Records pertaining to asylum and withholding of removal
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This project uses data compiled by the Sunshine in Government initiative, a coalition of journalism and transparency groups. SGI compiled data from federal agency annual FOIA reports to track how often b(3) exemptions were used. SGI also standardized the exemptions since some agencies used slightly different citations of the same laws. In some cases, agencies listed general laws without specifying a section under which information was withheld. This project does not include information from agencies that use no b(3) exemptions in 2008 or 2009. ProPublica compiled information about FOIA denials.
| Department | Claims |
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| Dept. of Justice | 1.0 |
TITLE 8--ALIENS AND NATIONALITY
CHAPTER 12--IMMIGRATION AND NATIONALITY
SUBCHAPTER II--IMMIGRATION
Part I--Selection System
Sec. 1158. Asylum
(a) Authority to apply for asylum
(1) In general
Any alien who is physically present in the United States or who
arrives in the United States (whether or not at a designated port of
arrival and including an alien who is brought to the United States
after having been interdicted in international or United States
waters), irrespective of such alien's status, may apply for asylum
in accordance with this section or, where applicable, section
1225(b) of this title.
(2) Exceptions
(A) Safe third country
Paragraph (1) shall not apply to an alien if the Attorney
General determines that the alien may be removed, pursuant to a
bilateral or multilateral agreement, to a country (other than
the country of the alien's nationality or, in the case of an
alien having no nationality, the country of the alien's last
habitual residence) in which the alien's life or freedom would
not be threatened on account of race, religion, nationality,
membership in a particular social group, or political opinion,
and where the alien would have access to a full and fair
procedure for determining a claim to asylum or equivalent
temporary protection, unless the Attorney General finds that it
is in the public interest for the alien to receive asylum in the
United States.
[[Page 103]]
(B) Time limit
Subject to subparagraph (D), paragraph (1) shall not apply
to an alien unless the alien demonstrates by clear and
convincing evidence that the application has been filed within 1
year after the date of the alien's arrival in the United States.
(C) Previous asylum applications
Subject to subparagraph (D), paragraph (1) shall not apply
to an alien if the alien has previously applied for asylum and
had such application denied.
(D) Changed circumstances
An application for asylum of an alien may be considered,
notwithstanding subparagraphs (B) and (C), if the alien
demonstrates to the satisfaction of the Attorney General either
the existence of changed circumstances which materially affect
the applicant's eligibility for asylum or extraordinary
circumstances relating to the delay in filing an application
within the period specified in subparagraph (B).
(3) Limitation on judicial review
No court shall have jurisdiction to review any determination of
the Attorney General under paragraph (2).
(b) Conditions for granting asylum
(1) In general
(A) Eligibility
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 Secretary of Homeland Security or the
Attorney General determines that such alien is a refugee within
the meaning of section 1101(a)(42)(A) of this title.
(B) Burden of proof
(i) In general
The burden of proof is on the applicant to establish
that the applicant is a refugee, within the meaning of
section 1101(a)(42)(A) of this title. To establish that the
applicant is a refugee within the meaning of such section,
the applicant must establish that race, religion,
nationality, membership in a particular social group, or
political opinion was or will be at least one central reason
for persecuting the applicant.
(ii) Sustaining burden
The testimony of the applicant may be sufficient to
sustain the applicant's burden without corroboration, but
only if the applicant satisfies the trier of fact that the
applicant's testimony is credible, is persuasive, and refers
to specific facts sufficient to demonstrate that the
applicant is a refugee. In determining whether the applicant
has met the applicant's burden, the trier of fact may weigh
the credible testimony along with other evidence of record.
Where the trier of fact determines that the applicant should
provide evidence that corroborates otherwise credible
testimony, such evidence must be provided unless the
applicant does not have the evidence and cannot reasonably
obtain the evidence.
(iii) Credibility determination
Considering the totality of the circumstances, and all
relevant factors, a trier of fact may base a credibility
determination on the demeanor, candor, or responsiveness of
the applicant or witness, the inherent plausibility of the
applicant's or witness's account, the consistency between
the applicant's or witness's written and oral statements
(whenever made and whether or not under oath, and
considering the circumstances under which the statements
were made), the internal consistency of each such statement,
the consistency of such statements with other evidence of
record (including the reports of the Department of State on
country conditions), and any inaccuracies or falsehoods in
such statements, without regard to whether an inconsistency,
inaccuracy, or falsehood goes to the heart of the
applicant's claim, or any other relevant factor. There is no
presumption of credibility, however, if no adverse
credibility determination is explicitly made, the applicant
or witness shall have a rebuttable presumption of
credibility on appeal.
(2) Exceptions
(A) In general
Paragraph (1) shall not apply to an alien if the Attorney
General determines that--
(i) the alien ordered, incited, assisted, or otherwise
participated in the persecution of any person on account of
race, religion, nationality, membership in a particular
social group, or political opinion;
(ii) the alien, having been convicted by a final
judgment of a particularly serious crime, constitutes a
danger to the community of the United States;
(iii) there are serious reasons for believing that the
alien has committed a serious nonpolitical crime outside the
United States prior to the arrival of the alien in the
United States;
(iv) there are reasonable grounds for regarding the
alien as a danger to the security of the United States;
(v) the alien is described in subclause (I), (II),
(III), (IV), or (VI) of section 1182(a)(3)(B)(i) of this
title or section 1227(a)(4)(B) of this title (relating to
terrorist activity), unless, in the case only of an alien
described in subclause (IV) of section 1182(a)(3)(B)(i) of
this title, the Attorney General determines, in the Attorney
General's discretion, that there are not reasonable grounds
for regarding the alien as a danger to the security of the
United States; or
(vi) the alien was firmly resettled in another country
prior to arriving in the United States.
[[Page 104]]
(B) Special rules
(i) Conviction of aggravated felony
For purposes of clause (ii) of subparagraph (A), an
alien who has been convicted of an aggravated felony shall
be considered to have been convicted of a particularly
serious crime.
(ii) Offenses
The Attorney General may designate by regulation
offenses that will be considered to be a crime described in
clause (ii) or (iii) of subparagraph (A).
(C) Additional limitations
The Attorney General may by regulation establish additional
limitations and conditions, consistent with this section, under
which an alien shall be ineligible for asylum under paragraph
(1).
(D) No judicial review
There shall be no judicial review of a determination of the
Attorney General under subparagraph (A)(v).
(3) Treatment of spouse and children
(A) In general
A spouse or child (as defined in section 1101(b)(1)(A), (B),
(C), (D), or (E) of this title) of an alien who is granted
asylum under this subsection may, if not otherwise eligible for
asylum under this section, be granted the same status as the
alien if accompanying, or following to join, such alien.
(B) Continued classification of certain aliens as children
An unmarried alien who seeks to accompany, or follow to
join, a parent granted asylum under this subsection, and who was
under 21 years of age on the date on which such parent applied
for asylum under this section, shall continue to be classified
as a child for purposes of this paragraph and section 1159(b)(3)
of this title, if the alien attained 21 years of age after such
application was filed but while it was pending.
(c) Asylum status
(1) In general
In the case of an alien granted asylum under subsection (b) of
this section, the Attorney General--
(A) shall not remove or return the alien to the alien's
country of nationality or, in the case of a person having no
nationality, the country of the alien's last habitual residence;
(B) shall authorize the alien to engage in employment in the
United States and provide the alien with appropriate endorsement
of that authorization; and
(C) may allow the alien to travel abroad with the prior
consent of the Attorney General.
(2) Termination of asylum
Asylum granted under subsection (b) of this section does not
convey a right to remain permanently in the United States, and may
be terminated if the Attorney General determines that--
(A) the alien no longer meets the conditions described in
subsection (b)(1) of this section owing to a fundamental change
in circumstances;
(B) the alien meets a condition described in subsection
(b)(2) of this section;
(C) the alien may be removed, pursuant to a bilateral or
multilateral agreement, to a country (other than the country of
the alien's nationality or, in the case of an alien having no
nationality, the country of the alien's last habitual residence)
in which the alien's life or freedom would not be threatened on
account of race, religion, nationality, membership in a
particular social group, or political opinion, and where the
alien is eligible to receive asylum or equivalent temporary
protection;
(D) the alien has voluntarily availed himself or herself of
the protection of the alien's country of nationality or, in the
case of an alien having no nationality, the alien's country of
last habitual residence, by returning to such country with
permanent resident status or the reasonable possibility of
obtaining such status with the same rights and obligations
pertaining to other permanent residents of that country; or
(E) the alien has acquired a new nationality and enjoys the
protection of the country of his or her new nationality.
(3) Removal when asylum is terminated
An alien described in paragraph (2) is subject to any applicable
grounds of inadmissibility or deportability under section \1\
1182(a) and 1227(a) of this title, and the alien's removal or return
shall be directed by the Attorney General in accordance with
sections 1229a and 1231 of this title.
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\1\ So in original. Probably should be ``sections''.
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(d) Asylum procedure
(1) Applications
The Attorney General shall establish a procedure for the
consideration of asylum applications filed under subsection (a) of
this section. The Attorney General may require applicants to submit
fingerprints and a photograph at such time and in such manner to be
determined by regulation by the Attorney General.
(2) Employment
An applicant for asylum is not entitled to employment
authorization, but such authorization may be provided under
regulation by the Attorney General. An applicant who is not
otherwise eligible for employment authorization shall not be granted
such authorization prior to 180 days after the date of filing of the
application for asylum.
(3) Fees
The Attorney General may impose fees for the consideration of an
application for asylum, for employment authorization under this
section, and for adjustment of status under section 1159(b) of this
title. Such fees shall not exceed the Attorney General's costs in
adjudicating the applications. The Attorney General may provide for
the assessment and pay
[[Page 105]]
ment of such fees over a period of time or by installments. Nothing
in this paragraph shall be construed to require the Attorney General
to charge fees for adjudication services provided to asylum
applicants, or to limit the authority of the Attorney General to set
adjudication and naturalization fees in accordance with section
1356(m) of this title.
(4) Notice of privilege of counsel and consequences of
frivolous application
At the time of filing an application for asylum, the Attorney
General shall--
(A) advise the alien of the privilege of being represented
by counsel and of the consequences, under paragraph (6), of
knowingly filing a frivolous application for asylum; and
(B) provide the alien a list of persons (updated not less
often than quarterly) who have indicated their availability to
represent aliens in asylum proceedings on a pro bono basis.
(5) Consideration of asylum applications
(A) Procedures
The procedure established under paragraph (1) shall provide
that--
(i) asylum cannot be granted until the identity of the
applicant has been checked against all appropriate records
or databases maintained by the Attorney General and by the
Secretary of State, including the Automated Visa Lookout
System, to determine any grounds on which the alien may be
inadmissible to or deportable from the United States, or
ineligible to apply for or be granted asylum;
(ii) in the absence of exceptional circumstances, the
initial interview or hearing on the asylum application shall
commence not later than 45 days after the date an
application is filed;
(iii) in the absence of exceptional circumstances, final
administrative adjudication of the asylum application, not
including administrative appeal, shall be completed within
180 days after the date an application is filed;
(iv) any administrative appeal shall be filed within 30
days of a decision granting or denying asylum, or within 30
days of the completion of removal proceedings before an
immigration judge under section 1229a of this title,
whichever is later; and
(v) in the case of an applicant for asylum who fails
without prior authorization or in the absence of exceptional
circumstances to appear for an interview or hearing,
including a hearing under section 1229a of this title, the
application may be dismissed or the applicant may be
otherwise sanctioned for such failure.
(B) Additional regulatory conditions
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.
(6) Frivolous applications
If the Attorney General determines that an alien has knowingly
made a frivolous application for asylum and the alien has received
the notice under paragraph (4)(A), the alien shall be permanently
ineligible for any benefits under this chapter, effective as of the
date of a final determination on such application.
(7) No private right of action
Nothing in this subsection shall be construed to create any
substantive or procedural right or benefit that is legally
enforceable by any party against the United States or its agencies
or officers or any other person.
(June 27, 1952, ch. 477, title II, ch. 1, Sec. 208, as added Pub. L. 96-
212, title II, Sec. 201(b), Mar. 17, 1980, 94 Stat. 105; amended Pub. L.
101-649, title V, Sec. 515(a)(1), Nov. 29, 1990, 104 Stat. 5053; Pub. L.
103-322, title XIII, Sec. 130005(b), Sept. 13, 1994, 108 Stat. 2028;
Pub. L. 104-132, title IV, Sec. 421(a), Apr. 24, 1996, 110 Stat. 1270;
Pub. L. 104-208, div. C, title VI, Sec. 604(a), Sept. 30, 1996, 110
Stat. 3009-690; Pub. L. 107-56, title IV, Sec. 411(b)(2), Oct. 26, 2001,
115 Stat. 348; Pub. L. 107-208, Sec. 4, Aug. 6, 2002, 116 Stat. 928;
Pub. L. 109-13, div. B, title I, Sec. 101(a), (b), May 11, 2005, 119
Stat. 302, 303.)
Amendments
2005--Subsec. (b)(1). Pub. L. 109-13, Sec. 101(a)(1), (2),
designated existing provisions as subpar. (A), inserted subpar. heading,
and substituted ``The Secretary of Homeland Security or the Attorney
General'' for ``The Attorney General'' and ``the Secretary of Homeland
Security or the Attorney General'' for ``the Attorney General'' in two
places.
Subsec. (b)(1)(B). Pub. L. 109-13, Sec. 101(a)(3), added subpar. (B)
Subsec. (b)(2)(A)(v). Pub. L. 109-13, Sec. 101(b), substituted
``described in'' for ``inadmissible under'' in two places and struck out
``removable under'' before ``section 1227(a)(4)(B)''.
2002--Subsec. (b)(3). Pub. L. 107-208 reenacted heading without
change and amended text generally. Prior to amendment, text read as
follows: ``A spouse or child (as defined in section 1101(b)(1)(A), (B),
(C), (D), or (E) of this title) of an alien who is granted asylum under
this subsection may, if not otherwise eligible for asylum under this
section, be granted the same status as the alien if accompanying, or
following to join, such alien.''
2001--Subsec. (b)(2)(A)(v). Pub. L. 107-56 substituted ``(III),
(IV), or (VI)'' for ``(III), or (IV)''.
1996--Pub. L. 104-208 substituted ``Asylum'' for ``Asylum
procedure'' as section catchline and amended text generally,
substituting subsecs. (a) to (d) for former subsecs. (a) to (e).
Subsec. (a). Pub. L. 104-132, Sec. 421(a), inserted at end ``The
Attorney General may not grant an alien asylum if the Attorney General
determines that the alien is excludable under subclause (I), (II), or
(III) of section 1182(a)(3)(B)(i) of this title or deportable under
section 1251(a)(4)(B) of this title, unless the Attorney General
determines, in the discretion of the Attorney General, that there are
not reasonable grounds for regarding the alien as a danger to the
security of the United States.''
1994--Subsec. (e). Pub. L. 103-322 added subsec. (e).
1990--Subsec. (d). Pub. L. 101-649 added subsec. (d).
Effective Date of 2005 Amendment
Pub. L. 109-13, div. B, title I, Sec. 101(h)(1), (2), May 11, 2005,
119 Stat. 305, provided that:
``(1) The amendments made by paragraphs (1) and (2) of subsection
(a) [amending this section] shall take effect as if enacted on March 1,
2003.
``(2) The amendments made by subsections (a)(3), (b), (c), and (d)
[amending this section and sections 1229a and 1231 of this title] shall
take effect on the date of the enactment of this division [May 11, 2005]
and shall
[[Page 106]]
apply to applications for asylum, withholding, or other relief from
removal made on or after such date.''
Effective Date of 2002 Amendment
Amendment by Pub. L. 107-208 effective Aug. 6, 2002, and applicable
to certain beneficiary aliens, see section 8 of Pub. L. 107-208, set out
as a note under section 1151 of this title.
Effective Date of 2001 Amendment
Amendment by Pub. L. 107-56 effective Oct. 26, 2001, and applicable
to actions taken by an alien before, on, or after Oct. 26, 2001, and to
all aliens, regardless of date of entry or attempted entry into the
United States, in removal proceedings on or after such date (except for
proceedings in which there has been a final administrative decision
before such date) or seeking admission to the United States on or after
such date, with special rules and exceptions, see section 411(c) of Pub.
L. 107-56, set out as a note under section 1182 of this title.
Effective Date of 1996 Amendments
Section 604(c) of div. C of Pub. L. 104-208 provided that: ``The
amendment made by subsection (a) [amending this section] shall apply to
applications for asylum filed on or after the first day of the first
month beginning more than 180 days after the date of the enactment of
this Act [Sept. 30, 1996].
Section 421(b) of Pub. L. 104-132 provided that: ``The amendment
made by subsection (a) [amending this section] shall take effect on the
date of the enactment of this Act [Apr. 24, 1996] and apply to asylum
determinations made on or after such date.''
Effective Date of 1990 Amendment
Section 515(b) of Pub. L. 101-649, as amended by Pub. L. 102-232,
title III, Sec. 306(a)(13), Dec. 12, 1991, 105 Stat. 1752, provided
that:
``(1) The amendment made by subsection (a)(1) [amending this
section] shall apply to convictions entered before, on, or after the
date of the enactment of this Act [Nov. 29, 1990] and to applications
for asylum made on or after such date.
``(2) The amendment made by subsection (a)(2) [amending section 1253
of this title] shall apply to convictions entered before, on, or after
the date of the enactment of this Act [Nov. 29, 1990] and to
applications for withholding of deportation made on or after such
date.''
Effective Date
Section effective Mar. 17, 1980, and applicable to fiscal years
beginning with the fiscal year beginning Oct. 1, 1979, see section 204
of Pub. L. 96-212, set out as an Effective Date of 1980 Amendment note
under section 1101 of this title.
Abolition of Immigration and Naturalization Service and Transfer of
Functions
For abolition of Immigration and Naturalization Service, transfer of
functions, and treatment of related references, see note set out under
section 1551 of this title.
Expeditious Removal for Denied Asylum Applicants
Section 130005 of Pub. L. 103-322, as amended by Pub. L. 104-208,
div. C, title III, Sec. 308(e)(1)(P), (17), Sept. 30, 1996, 110 Stat.
3009-620, 3009-621, provided:
``(a) In General.--The Attorney General may provide for the
expeditious adjudication of asylum claims and the expeditious removal of
asylum applicants whose applications have been finally denied, unless
the applicant remains in an otherwise valid nonimmigrant status.
``(b) Employment Authorization.--[Amended this section.]
``(c) Authorization of Appropriations.--There are authorized to be
appropriated to carry out this section--
``(1) $64,000,000 for fiscal year 1995;
``(2) $90,000,000 for fiscal year 1996;
``(3) $93,000,000 for fiscal year 1997; and
``(4) $91,000,000 for fiscal year 1998.''
Time for Establishment of Asylum Procedure by Attorney General
Section 204(d)(2) of Pub. L. 96-212 provided that: ``The Attorney
General shall establish the asylum procedure referred to in section
208(a) of the Immigration and Nationality Act (as added by section
201(b) of this title) [former subsec. (a) of this section] not later
than June 1, 1980.''