Asylum is a form of protection granted under United States law, which allows a non-citizen person to remain in the U.S. instead of being removed or deported to a country where that person fears persecution or harm.
To apply for asylum a person must be physically present in the U.S. or seeking entry into the U.S. at a port of entry. By contrast, a refugee is someone who applies for protection from outside the U.S. through the U.S. Refugee Admissions Program (USRAP).
Modern asylum law can be traced to mass migrations that occurred after the aftermath of World War II. In essence, the UN sought to create a system where refugees could seek protection in a foreign country, after leaving their country of origin due to persecution for certain characteristics. The U.S. acceded to international law principles on asylum in 1968, and eventually passed its own legislation under the Refugee Act of 1980.
Asylum is a discretionary form of relief—that means a noncitizen does not have the right to asylum, and instead the Secretary of Homeland Security and the Attorney General can decide whether to grant or deny it. See INA 208(b)(1)(A) (8 U.S.C. 1158(b)(1)(A)).
An asylum applicant has the burden of proof in establishing that the applicant is entitled to relief. See INA § 208(b)(1)(B)(i) (8 U.S.C. § 1158(b)(1)(B)(i)). To establish eligibility, the asylum applicant must show that she meets the definition of a refugee. Id. That means proving either (1) she has suffered past persecution; or (2) she has “a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion” in her country of origin or last habitual residence. INA § 101(a)(42)(A) (8 U.S.C. § 1101(a)(42)(A)).