Asylum

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.

REQUIREMENTS

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:

Race.
Religion.
Nationality.
Political opinion, or,
Membership in a particular social group.

WHAT IS THE ASYLUM APPLICATION PROCESS?

There are two primary ways in which a person may apply for asylum in the United States:

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.

It is vital that a person wishing to file for this type of relief, seek the services of a competent professional, and this needs to be done early in the process.

THE ONE YEAR DEADLINE FOR ASYLUM APPLICATIONS

Generally, a person needs to submit an application for asylum within one year of their entry to the U.S., but there are limited exceptions to this rule, and it is necessary to contact us if you wish further guidance on this.

At this time, because of a federal case, there is relief for people who encountered the D.H.S. at the time of their arrival and were never advised of the deadline to file. All applications for relief must be filed before April 2020; but it should be noted this is not a blanket relief, and again for further guidance on this it is vital that a person contact us.

PERSONS ARRIVING AT THE U.S. BORDER REQUESTING ASYLUM

DHS subjects most noncitizens who were encountered by, or presented themselves to, a U.S. official at a port of entry or near the border to expedited removal, which is an accelerated process which allows the DHS to perform rapid removal of certain persons.

Two tools are available to the DHS to protect people’s rights and these are grounded in the ‘credible fear’ and ‘reasonable fear’ screening processes.

THE CREDIBLE FEAR PROCESS

If a person who are placed in expedited removal proceedings informs a Customs and Border Protection (CBP) official that they fear persecution, torture, or returning to their country or that they wish to apply for asylum, they should be referred for a credible fear interview which is preformed by an asylum official. If the asylum offical determines that the person has a credible fear of persecution or torture, it means that the person has proven that he or she has a “significant possibility” of establishing eligibility for asylum or other protection under the Convention Against Torture. In such cases the individual will then be referred to the court, where they have the opportunity to present their asylum application to an immigration judge. It is advisable that the person be represented from the beginning of the process by a qualified lawyer, but certainly when in immigration court. This means from the moment a person enters the U.S. and even before.

If the asylum official finds that the person does not have a credible fear, the individual is ordered removed, but before removal, the individual may appeal the negative decision by pursuing a very shortened hearing to the immigration judge. However, most of these negative decisions are upheld by the court, and thus it is imperative to be fully prepared before going forward with a credible fear interview.

If the negative decision is reversed, the person is placed in further removal proceedings where they can seek protection from removal, including asylum. However, if the court upholds the negative finding by the asylum officer, the person shall be removed from the U.S. by the DHS.

REASONABLE FEAR

Persons who re-enter the United States unlawfully after a prior removal order and noncitizens convicted of certain crimes are subject to a different expedited removal process called ‘reinstatement of removal’. To protect asylum seekers from summary removal before their asylum claim is heard, those in reinstatement of removal proceedings who express a fear of returning to their country are afforded a “reasonable fear” interview with an asylum officer.

A person must show that there is a “reasonable possibility” that they will be tortured in the country of removal or persecuted on the basis of race, religion, nationality, political opinion, or membership in a particular social group. While both credible and reasonable fear determinations evaluate the likelihood of an individual’s persecution or torture if removed, the reasonable fear standard is higher.

If the asylum official determines that the person has a reasonable fear of persecution or torture, they will be referred to an immigration court, where they will be able to present their case to a judge. The person also has the opportunity to prove to an immigration judge that they are eligible for “withholding of removal”, which is another relief afforded to persons that may be tortured in their home country. Withholding of removal is a higher standard to meet, and people who are granted the relief of withholding, cannot become citizens by virtue of this grant.

If the asylum office finds that the person does not have a reasonable fear of future persecution or torture, it maybe appealed, and this appeal then follows a similar path to the appeal mentioned above for the credible fear.

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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Asylum

Asylum and Withholding of Removal

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ASYLUM

REQUIREMENTS

WITHHOLDING OF REMOVAL

BARS TO GAINING THIS STATUS

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