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Asylum,  Withholding of Removal, Convention against Torture

      Asylum is the protection granted to foreign nationals who feel they cannot return to their native country. Seeking asylum is often confused with requesting refugee status, however, one main difference is that an individual who is requesting asylum is already in the country at the time of their request. asylum

The two ways of obtaining asylum in the United States are through the affirmative process and defensive process. In most cases, asylum is requested because an individual feels they would be in some form of mortal danger if they were to return to their country. Common reasons individuals seek asylum in the U.S. are fear of being killed by their own government, or persecuted due to their race, social status, personal, political or religious beliefs. Also, when an individual is placed in deportation proceedings he or she can file for Asylum or Withholdings of Removal as a defense to removal.

Individuals are generally placed into defensive asylum processing in one of two ways:·

  • They are referred to an Immigration Judge by USCIS after they have been determined to be ineligible for asylum at the end of the affirmative asylum process, or
  • They are placed in removal proceedings because they have violated their legal status
  • They were caught by U.S. Customs and Border Protection (CBP) trying to enter the United States without proper documentation, were placed in the expedited removal process, and were found to have a credible fear of persecution or torture by an Asylum Officer.

To qualify for asylum, an applicant must prove that

  1. he or she is unable or unwilling to return to their home country

  2. because of persecution or an objective reasonable fear of persecution

  3. on account of

  • race,

  • religion,

  • nationality, and/or

  • membership in a particular social group or

  • political opinion.

To establish a well-founded fear of future persecution the alien must show he has a subjective fear of persecution and that the fear has an objective basis. Well-founded fear of prosecution is defined as if a reasonable person in his/her circumstances would fear persecution of returned to their native country.

Individual wishing to file for asylum should file Form I-589 with the court. 

At your first Master Calendar Hearing, the Judge will ask you whether you accept expedited removal. Depending on your circumstances you declaim or accept the expedited hearing. The Judge will also set a deadline for you to submit your asylum application.

For detained respondents the judges try to schedule hearing as soon as possible. Under expedited removal scheduling, the Judge will try to hear the case and issue her decision in the case within 120 days of receiving an asylum application for individuals who filed with the court for the first time and within 180 days for affirmative asylum applicants. However, it usually takes longer to have full hearing due to court’s busy dockets. 

Humanitarian asylum in the U.S

To be eligible for refugee status, you must have fled your own country because of past persecution or a fear of future persecution based upon race, religion, nationality, political opinion, or membership in a particular social group. People fleeing civil wars and natural disasters may not be eligible for resettlement under U.S. law. However, they may fall within the protection of the United Nations High Commissioner for Refugees (UNHCR). To apply for "refugee" status, you must contact the U.S. Embassy or the office of the UN High Commissioner for Refugees (UNHCR).  Contact either the UNHCR or the US Embassy and make a request to apply for refugee status. You will go to UNHCR or the US Embassy and prepare and submit USCIS Form I-590. There is no cost to apply. Contact the agencies above for more information.

Withholding of Removal

Withholding of Removal is a special type of order issued by an immigration judge to a person who demonstrates more than a 50% chance that they will be persecuted in their home country on account of their race, religion, nationality, membership in a particular social group, or political opinion.

To qualify for withholding of removal under section 241(b)(3) of the Act, the respondent’s facts must show a clear probability that his life or freedom would be threatened in the country directed for deportation on account of race, religion, nationality, membership in a particular social group or political opinion. So, the grounds for withholding of removal are the same as for asylum.

An alien convicted of an "aggravated felony" for which the person has been sentenced to an aggregate term of imprionsment of five (5) years is presumed to have committed a "particularly serious crime" and is ineligible for Withholding of Removal. This means that aliens who are ineligible for Withholding of Removal may include certain criminals, terrorists, or persecutors.

Convention Against Torture

The applicant for withholding of removal under the Convention Against Torture bears the burden of proving that it is “more likely than not” that he or she would be tortured, as defined in the regulations, if removed to the proposed country of removal. 8 C.F.R. § 1208.16(c)(2). The torture must be inflicted “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1). “Acquiescence” requires that the public official have prior awareness of the activity and “thereafter breach his or her legal responsibility to intervene to prevent such activity.” 8 C.F.R. § 1208.18(a)(7).

For the purpose of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

Asylum vs Withholding of Removal

In contrast with asylum status , family members such as spouses or children of persons whose status is "withholding of removal" or "CAT" may not receive derivative grant status from an withheld removal beneficiary. Additionally, an alien who is granted withholding of removal or CAT status may be detained by the DHS indefinitely, or may be released into the United States but cannot depart the country nor adjust their status to that of a lawful permanent resident.

We work with individuals who have either arrived in the U.S. with the specific purpose of requesting asylum and need legal representation to do so, and with individuals who have been found to be in the U.S. illegally, but have a real fear of being persecuted if they were to be deported back to their native country. In a situation like that, requesting asylum may be the proper deportation defense.  Learn what the grounds for asylum are. We will help you to organize your thoughts and documents. We will represent you in the immigration court. 

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