Asylum and Withholding of Removal
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Asylum is a protection that is granted to foreign persons who are located in the U.S., or arriving at the border who meet the international law definition of a “refugee.” The international Convention and 1967 Protocol define a refugee, ‘as a person who is unable or unwilling to return to his or her home country, and cannot obtain protection in that country, due to past persecution or a well-founded fear of being persecuted in the future, on account of race, religion, nationality, membership in a particular social group, or political opinion’.
A person that has been granted asylum, is protected from being returned to their country of origin, is allowed to work in the U.S. and may apply for a Social Security card. Depending on where they wish to travel they may also request permission to travel to different countries and can petition to bring family members to the U.S. via a relative petition. There can also be eligibility for certain government programs, such as Medicaid or Refugee Medical Assistance.
After one year of being granted/approved for asylum you can apply for a green card (legal permanent resident). After your green card application has been approved, you need to wait just four years to apply to become a U.S. Citizen. After one year of being granted asylum, you may apply for certain family members to be reunited with you in the U.S.
In order to be eligible for asylum, you must prove that you meet the definition of a refugee, that is, you are either the victim of past persecution or you have a well-founded fear of future persecution. In the case of past persecution, you must prove that you were persecuted in your home country or last country of residence.
The persecution needs to be based on one or more of the following grounds:
- Political opinion, or,
- Membership in a particular social group.
- Affirmative Asylum: A person who is not in removal proceedings (not in court) may make an affirmative application to the immigration authorities to apply for asylum and this request for asylum will be first adjudicated by an immigration official and they can either approve this application, or refer your application to the immigration court, where you will have a further opportunity to present your case. There are a number of different types of hearings in Immigration Court, however, the hearing where you can present your case (witnesses, evidence etc.) is called the merits hearing. If needed an interpreter will be provided at no cost, but the government does not offer legal aid.
- Defensive Asylum: A person who is in removal proceedings (presently in immigration court) may apply for asylum by defensively filing an application with the Immigration Court.
WITHHOLDING OF REMOVAL
Withholding of removal has similar requirements to that of asylum but carries a higher bar (51% likelihood of suffering future persecution as compared to a likelihood of at least 10% in asylum cases) that must be met in order the granting of this application. An Applicant is required to show that they have endured past persecution (been jailed, abused, beaten, or tortured) based on the five grounds, and is presumed that your life or freedom would be threatened if you are repatriated to your home country. If an Applicant did not suffer persecution, the Applicant is required to establish that it is ‘more likely than not’ that your life or freedom will be threatened if returned to your country of origin.
Unlike Asylum, a grant of withholding of removal is mandatory, meaning as long as you meet the higher bar, your application should be approved, and if an Applicant secures this status, they will not be deported to their home country.
If Withholding of Removal is given, this does not offer derivative status for family members and the recipient, unlike a grant of Asylum cannot secure their legal permanent residence (green card). You are allowed to remain in the U.S. and will be provided with work authorization. It is important that you seek legal advice if you plan to depart the U.S. even for a short period of time.
BARS TO GAINING THIS STATUS
There are certain bars, why Applicants will not get Withholding of Removal, which are:
- You participated or helped in the persecution of others.
- You pose a security threat to the U.S.
- You were convicted of a ‘particularly serious crime’ (PSC).
- You committed a ‘serious nonpolitical crime’ (SNC).
PSCs would include most aggravated felonies, like drug offenses and violent crimes, but been charged with a PSC is not enough to bar you and you must be convicted of the crime. However, a SNC is less serious than a PSC, and the mere admission and, or charging of such is an issue of concern.
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