Asylum and Removal/Deportation
1. Asylum:
Under Section 208(b) of the INA Act, the attorney general may grant asylum to an individual who demonstrates that an alien is unwilling to or unable to return to his or her home country because of past persecution or a “well founded fear” of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
If an individual’s application for asylum is approved, (1) The individual may apply for adjustment of status one year later; (2) The individual is entitled to work in the U.S.; (3) The individual may be permitted to travel outside the U.S.; and (4) The individual’s spouse and children may also be granted asylum.
The USCIS or an immigration judge may deny Asylum for a variety of reasons. A denial may or may not affect the alien's status, depending on whether the alien is here lawfully or not. However, if the USCIS or the Immigration Court determined that the application is a fraudulent, the alien will be removed and permanently barred from entering the U.S.
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Requirements for Asylum Application:
- Physical Presence – An alien who is physically present in the United States or who is applying for admission may apply for Asylum, irrespective of his or her status. However, aliens in expedited removals, may not be considered as aliens "within the U.S."
- Well Founded Fear of Persecution – An alien that is applying for Asylum must demonstrate that he or she has "well founded fear of persecution." Evidence of past persecution, although not required, will be prima facie evidence of well founded fear of future persecution. If there is no evidence of past persecution, the alien must show that he/she has credible fear of future persecution.
- Qualified Group – At least one basis for persecution must be based on race, religion, nationality, political opinion, or membership to a particular group.
- Unable To Return To The Country of Last Residence – The alien must not be able to return to the country of last residence because of past persecution or well founded fear of future persecution.
- Time Requirement – An alien must apply for Asylum within one year of physical presence in the United States. The alien need not be documented. This requirement may be waived base on extraordinary circumstances, such as changed circumstances or a change of the alien's country condition after the alien resided in the U.S. for one year or more that would not allow him to file the application within the time requirement.
- Bar of Eligibility – An alien who is barred based on one of the following reasons may not apply for Asylum:
- Aliens who did not apply within 1-year of entering into the U.S. (documented or undocumented), a waiver may be available;
- Aliens who may be safely removed to another country;
- Aliens who were previously denied of an Asylum application (waivers are available where the alien can show changed circumstances). In addition, if USCIS denied the Asylum application, and is now currently in the immigration court, the alien can apply for Asylum with the immigration judge;
- An alien who has participated in persecution of another on account of race, religion, nationality, membership in a particular social group, or political opinion;
- An alien who is regarded as a danger to the security of the U.S.; and
- An alien who has committed a particularly serious crime;
- An alien who may have committed a terrorist activity or has been ordered to be removed from the U.S. based on terrorist activities.
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Asylum Application Procedures
An Asylum application may be filed with the USCIS or with the immigration court. An alien who is currently residing inside the United States may file an Asylum application with the USCIS, seeking to change his/her current status to an Asylee. If granted, the alien will be able to obtain permanent residency(Green Card). If USCIS rejects the alien's Asylum application, one of two things may happen, depending on the alien's legal status. If the alien is here in the U.S. legally, under some other status and is not out of status, the alien may continue to maintain that status (provided that USCIS does not determine that the Asylum application was fraudulent). If the alien is not in the U.S. legally, USCIS may refer the case to Immigration and Custom Enforcement (ICE) to file a "Notice to Appear" in immigration court for removal proceedings.
The alien may file for Asylum with the immigration court when ICE issued a Notice to Appear for removal proceedings, even if they were previously denied by USCIS. This is the second opportunity for the alien to show that he/she is qualified for Asylum status. If the Immigration Judge (IJ) granted Asylum to the alien, she/he may obtain a green card and become a permanent resident. However, if the Asylum application is denied, the alien may file an appeal with the Board of Immigration Appeals (BIA) within 30 days from the date of the denial. Within 90 days of the denial date, the alien may also file a "Motion to Reopen" with the (BIA).
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2. Removal/Deportation
Many Permanent Residents enter the United States lawfully or unlawfully. In some cases, immigrants come to the United States on temporary visas (such as tourists) or permanent visas (spouses of U.S. citizens). If, upon entering lawfully, they are accused of having violated their lawful status (such as illegally staying in the USA after their visa expired, working without employment authorization, or convicted of a crime) they become “removable” or subject to the possibility of deportation. In other words, even though they lawfully entered the United States, the government now seeks to deport them for having violating section 237(a) of the Immigration and Nationality Act.
3. Withholding of Removal
Withholding of removal (“WOR”) is a form of relief from removal similar to asylum in that it provides protection for persons fleeing persecution. Like asylum, there must be a threat to life or freedom on account of race, religion, nationality, political opinion, or membership in a particular social group.
However, WOR has a higher standard of proof than asylum. Whereas asylum applicants must prove a “well-founded fear” of persecution, applicants for WOR must prove that they face a threat to life or freedom by a “clear probability” standard.
The “clear probability” standard
This means that it is “more likely than not” that the person will be subject to harm. It is a more difficult standard to meet than the “well-founded fear” standard. There must be better than a 50% chance of threat to the individual’s well-being.
United Nations Convention Against Torture (CAT)
An alien may also apply under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) in conjunction with the Asylum application and the withholding of removal application. The Convention Against Torture (“CAT”) provides for relief from removal for individuals who fear torture at the hands of the government in his/her country, or from individuals who have the consent of that government.
To qualify under CAT, the alien must show that there is "substantial grounds to believe" or "more likely than not," that he/she will be "tortured" upon being removed to his/her home country. Torture is an act by which severe pain or suffering (physical or mental) is intentionally inflicted to obtain information or a confession, for punishment, for intimidation or coercion, or for another reason based on discrimination; and the act was inflicted by the government, or by others under the government's consent, or by a group that the government is unwilling or unable to control.
Relief under the CAT can provide relief to aliens who are not eligible for asylum or WOR because they fail to fall into one of the five categories of bases for persecution: race, religion, nationality, political opinion, or membership in a particular social group.
Relief under the CAT can also provide relief to aliens who are not eligible for asylum or WOR because of their criminal history, past persecutory acts, etc.
This form of relief does not require that the applicant show that the torture is “on account of” a specific reason.
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4. FAQ:
1. What is “Refugee”?
To qualify as an "Asylee" (an alien that is seeking Asylum status), the alien must meet the definition of a refugee. A refugee is one that is outside of his country (in a third country although there are some exceptions to this requirement). A "refugee" is defined in Section 101, 8 U.S.C. 1101 of the Immigration and Nationality Act.
"The term 'refugee' means
(A) 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...."
2. How to define “Well-founded fear of persecution”?
INS Regulations at 8 C.F.R §208 provide that an Application for Asylum can be approved when the applicant has a "well founded fear" of persecution based on:
"account of race, religion, nationality, membership in a particular social group, or political opinion, and that he is unable, or unwilling to return to or avail himself of the protection of that country [of nationality or last habitual residence] owing to such persecution"
3. What is “Time Limit for Asylum Claims” and exceptions?
Applications for asylum must be filed within one year after the date of arrival in the U.S. However, this time limit will not apply if the applicant can demonstrate either:
(1) Changed circumstances materially affecting his/her eligibility for asylum (Example: changed country conditions); OR
(2) Extraordinary circumstances relating to the delay in filing an application within the time period required (Examples: serious mental or physical disability; ineffective assistance of counsel).
4. What is “Asylum Application In Expedited Removal”?
If an alien who is otherwise subject to expedited removal indicates a desire to apply for Asylum, he or she will be interviewed by an Asylum officer. The Asylum officer must determine whether the alien has a "credible fear of persecution." If the Asylum officer fails to find a fear of persecution, the alien will be removed. There is limited administrative review of this decision. Any alien who is able to demonstrate a credible fear of persecution will be detained, or may be allowed to parole into the U.S. (depending whether the person will be a danger to the U.S. or its citizens), while his or her non-expedited Asylum application is being processed with USCIS.
5. What are differences between Asylum and “Withholding of Removal”?
Unlike asylum, a grant of Withholding of Removal (WOR) does NOT provide successful applicants with the following benefits:
(1) WOR does not lead to lawful permanent resident status (green card holder);
(2) WOR does not give the individual the possibility of travel outside the U.S.;
(3) WOR does not grant benefits to spouses or children of applicants.
WOR is a mandatory form of relief. Whereas asylum is discretionary, which means that it will only be granted upon a finding that the applicant deserves, WOR is mandatory, which means that it MUST be granted if eligibility is proven.
6. Compare “Relief under the CAT” and “deferral of removal”?
The result of a grant of relief under the CAT is the same as for WOR unless the individual is ineligible for WOR due to past persecutory acts, conviction of a particularly serious crime, or for security reasons. The relief for these individuals under the CAT is called deferral of removal.
Deferral of removal provides limited relief in that the applicant receives no lawful status in the U.S. Additionally, successful applicants will not be released from custody if detained. Finally, deferral of removal may be terminated at any time.
7. How to define “Torture” in CAT?
For purposes of the CAT, torture refers to any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as: (1) obtaining a confession; (2) punishment for commission or suspicion of commission of an offense; (3) intimidation or coercion; (4) or for any reason based on discrimination of any kind.
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