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Section 208 of the Immigration and Nationality Act provides that an alien who is physically present in the United States, or at a land border or port of entry, may apply for, and be granted, asylum, if the Attorney General determines that such alien is a refugee as defined under the law.

The immigration act defines refugee as any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that 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.
Withholding of deportation means that the Attorney General shall not deport or return an alien to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.
To be successful on an asylum claim, the alien must prove:
(1) that he or she has a well-founded fear of persecution or has suffered past persecution;
(2) that such persecution is on account of race, religion, nationality, membership in a particular social group or political opinion; and
(3) that asylum should be granted in the exercise of discretion. The US Supreme Court has held that the term "well-founded fear of persecution" means a "reasonable" fear of persecution. The Supreme Court stated that the alien must prove specific facts through objective evidence to prove either past persecution or good reason to fear future persecution. Some factors, which many courts have held constitute persecution, include: murder, torture, prolonged detention, slavery, and cumulative mistreatment. Also, persecution can be economic in nature, but this must usually be very severe and accompanied by some other form of persecution. In recent years, sex-based persecution claims including female genital mutilation, homosexuality, and those with sexually transmitted diseases have been granted asylum. Factors, which have been held not to constitute persecution, include: general harassment, brief detention or incarceration, general economic hardship, general civil unrest in a country, refusal to be drafted in the country's armed forces, or where the applicant will be prosecuted for a violation of the country's criminal laws.
In order to prove a well-founded fear of persecution, the alien must show:
(1) that he or she possesses a belief or characteristic a persecutor seeks to overcome in others by means of punishment of some sort;
(2) the persecutor is already aware, or could become aware, that he or she possesses this belief or characteristic;
(3) the persecutor has the capability of punishing the alien; and
(4) the persecutor has the inclination to punish the alien. Also, the government of the country must inflict the persecution, unless the government is unable or unwilling to offer protection against persecution at the hands of other groups. Likewise, a well-founded fear of persecution includes both subjective and objective elements, and the persecution must be based on one of the five grounds mentioned above.
The REAL ID Act of 2005 made it more difficult to prove persecution by setting forth a statutory description of the burden of proof needed to establish an asylum claim.
The REAL ID Act states that:
The burden of proof is on the applicant to establish that the applicant is a refugee, within the meaning of section 101(a)(42)(A). 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.

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.

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.
Even if an alien establishes a well-founded fear of persecution, asylum may still be denied because of a statutory bar or as a matter of discretion. For instance, an alien who has been firmly resettled in a third country before entering the US is not eligible for asylum. Firmly resettled means that the alien was offered residence status, citizenship, or some other form of permanent resettlement by another country and traveled to and entered that nation as a consequence of his or her flight from persecution. Likewise, if an alien has persecuted others, is a security risk, or has been convicted by a final judgment of a particularly serious crime thus constituting a danger to the community of the United States, he or she is statutorily ineligible for a grant of asylum.

Finally, as mentioned above, asylum may still be denied as a matter of discretion (for instance if an alien has used false documents, has many arrests, even though no convictions, has lied to Immigration, etc.) Even if asylum is denied as a matter of discretion, withholding of deportation may still be available, since this relief is mandatory, not discretionary. While an applicant granted only withholding of deportation may remain in the country and obtain employment authorization, this status will not lead to permanent residence, and Immigration can still attempt to deport the alien to a third country that might be willing to accept the alien.

There are two ways in which an alien may apply for asylum:

The first is known as an affirmative application. In this manner, the alien files his or her application directly with the immigration asylum unit, prior to their being placed in removal proceedings. The applicant will be interviewed on the asylum application, and may be accompanied by an attorney.

The application is filed, in triplicate, on immigration Form I-589, together with two photographs for each applicant fourteen years and older. Currently there is no fee to file an asylum application; however, the new law permits the immigration service to establish a fee if it desires. You should attach to the application documentation to support your case. This can include affidavits, new articles, country reports, and other proof of persecution.

An asylum officer can adjudicate an asylum application in one of three ways:

(1) The application may be approved. If the application is approved, the applicant who is now called an asylee may apply for adjustment of status to permanent residence one year after obtaining asylum status. In addition, the asylee’s spouse and children, if included in the asylum application, and otherwise admissible, may also be granted asylum. If the spouse and children are outside the US, the asylee must file immigration Form I-730 with the appropriate service center. When approved, it will be sent to the consulate abroad where the spouse and children can receive refugee visas.

(2) If the applicant is in status, and the officer wishes to deny the case, the applicant must be sent a notice of intent to deny, which sets out the reasons why the officer intends to deny the case, and gives the applicant at least ten days in which to rebut the notice. If the rebuttal is not sufficient, the application will be denied. However, the applicant can still remain in lawful nonimmigrant status.

(3) If the applicant is out of status, and the application is not approved, the asylum officer will refer the case to an immigration judge for a removal hearing. The applicant can then renew the application for asylum before the immigration judge and have a full hearing on the merits of the application.
In addition to an affirmative asylum application, an alien may file an application once they have been placed in removal proceedings. A hearing on the application will be held before an immigration judge. The judge may request an advisory opinion from the State Department if he or she feels that it will assist him or her in reaching a decision in the case. As in any other case, the applicant should be prepared to present whatever evidence he or she has in support of the application.
If the immigration judge grants the application, the asylee is then able to file for adjustment one year later. If the application is denied the alien may file an appeal to the Board of Immigration Appeals. (Please refer to the next section on appeals for a further discussion of the appeals process.)

The Immigration Act of 1996 makes some significant changes in the asylum process. The most important change states that a person seeking to file for asylum must do so within one year of arriving in the United States. In addition, those in the United States, prior to April 1, 1997, must file their applications before April 1, 1998. The only exception to filing late is if the alien can show changed circumstances in the alien's country which materially affect the applicant's eligibility for asylum, or that the alien was unable to timely file because of extraordinary circumstances.
Furthermore, the new act precludes asylum to anyone who had previously applied for asylum and had the application denied, and for any alien who has been convicted of an aggravated felony. Another provision of the new act states that if the Attorney General determines that an alien has made a frivolous application for asylum, the alien shall be permanently ineligible for any other benefit under the immigration laws. Asylum applicants must wait at least 150 days following the filing of their asylum claim before they are eligible to apply for employment authorization. Naturally, an attorney may represent an applicant for asylum, provided that it is at no expense to the government.

Finally, the new act states that there is no judicial review of denials or determinations relating specifically to applications filed after the time limit; determinations relating to resettlement in a third country; applications filed after a previous denial; and denials related to a finding of terrorist activity.