Asylum

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What is asylum?

Asylum is a form of protection available to anyone at risk of serious harm in their home country who must leave in search of safety in another country. Asylum allows an individual to remain in the United States (U.S.) instead of being removed (deported) to a country where he or she fears persecution or harm. To apply for asylum in the U.S., you must be physically present in the U.S. or be seeking entry into the U.S. at a port of entry.

 

Who is eligible for asylum?

To determine if you are eligible for asylum status, U.S. Citizenship and Immigration Services (USCIS) will evaluate whether you meet the definition of an asylee according to section 101(a)(42) of the Immigration and Nationality Act (INA). In general, eligibility for asylum requires that:
1.    You are present in the United States (by lawful or unlawful entry);
2.    You are unable or unwilling to return to your home country due to past persecution or have a well-founded fear of persecution if you return;
3.    The reason for persecution is related to one of five things: race, religion, nationality, membership in a particular social group, or political opinion; and
4.    You are not involved with an activity that would bar you from asylum.

Read the Law: 8 USCA §§ 1101(a)(42)(A), 1158(b)(1)(A)(i)

 

What could prevent me from being granted asylum?

You could be denied asylum if it is found that you:

  • Ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion
  • Were convicted of a “particularly serious crime” that makes you a danger to the U.S. 
  • Committed a “serious non-political crime” outside the U.S. 
  • Pose a danger to the security of the U.S.
  • Have been firmly resettled in another country before arriving in the U.S.

You will also be barred from receiving asylum if you are inadmissible due to terrorism or national security concerns. Learn more about Bars to Asylum and Inadmissibility Grounds Related to Terrorist Activity.

Read the Law: 8 USCA § 1158(b)(2)

 

Types of Asylum

Affirmative Asylum

A person who is not in removal proceedings (or a person who has been designated as an “unaccompanied child,” even if in removal proceedings) may affirmatively apply for asylum through USCIS. If USCIS does not grant the asylum application, and the applicant does not have a lawful immigration status, he or she is referred to the immigration court for removal proceedings.

Defensive Asylum

A person who is in removal proceedings may apply for asylum defensively by filing the application with an immigration judge at the Executive Office for Immigration Review (EOIR). In such a case, asylum is applied for as a defense against removal from the U.S. An individual who was denied asylum through an affirmative application may renew their request for asylum through the defensive process. 

 

Do asylees have permission to work?

While you cannot apply for employment authorization at the time you apply for asylum, you may apply for an employment authorization document (work permit) if:

  • 150 days have passed since you filed your complete asylum application; and
  • No decision has been made on your application.

If you are granted asylum, you may work immediately. Although USCIS does not require you to obtain an Employment Authorization Document (work permit card), many asylees choose to obtain one for convenience or identification purposes. An Employment Authorization Document is a U.S. government-issued photo identification. So, a work permit can be a helpful document for new immigrants.

 

Do my family members get asylum?

Your spouse and children who are in the U.S. may be eligible for asylum and can be included in an application.  To include your child on your application, the child must be unmarried and under 21 years of age. 

Read the Law: 8 USCA § 1158(b)(3)

 

What is a removal proceeding?

Removal proceedings, also known as deportation proceedings, are hearings held before an immigration judge to determine whether an individual may remain in the U.S. Removal proceedings begin when the government alleges an individual does not have valid immigration status or an individual has done something to end otherwise valid immigration status.

Removal proceedings may be triggered in several different ways. The government may deport virtually any non-citizen, but the reasons for doing so can vary. Some examples include:

  • An unlawfully present immigrant is arrested by immigration enforcement.
  • An asylum applicant is referred to an immigration judge (due to denial).
  • A green card holder is convicted of a serious crime.
  • A student attending school under a visa stops going to school but fails to leave the U.S. 
  • A conditional green card holder is denied conditional status based on a finding of marriage fraud.

Read the Law: 8 USCA §§ 1229, 1229a

 

What is withholding of removal?

Withholding of removal prohibits the U.S. government from removing someone to a country where their life or freedom would be threatened on account of a protected ground (race, religion, nationality, political opinion, or membership in a particular social group).  While similar to asylum, there are differences. To obtain a withholding of removal, you must show a clear probability of future persecution (i.e. it is more likely than not that you would be persecuted) if returned to your country of origin. This is a higher standard than for asylum. The test is objective, and you will need to present highly convincing evidence showing that it is more likely than not that you would be persecuted.

The main advantage of applying for withholding of removal is that it is a mandatory form of protection. If you meet the requirements of withholding the judge must grant you this form of relief. Any discretionary factors are not relevant. Therefore, you should apply for it as a backup form of relief if you might be denied asylum based on discretionary factors (such as a long history of crimes that are not serious).

Additionally, some reasons that could prevent you from getting asylum (such as the one-year filing deadline) do not apply to withholding. The only bars that do apply to withholding, and would block you from receiving it, are:

  • persecution of others
  • conviction of a particularly serious crime
  • commission of a serious nonpolitical crime outside the U.S., or
  • terrorism.

Applicants who win withholding of removal may not receive as many benefits as someone granted asylum. You can seek work authorization; however, you will not be able become a legal permanent resident or a citizen. Additionally, a winner of withholding of removal can never travel internationally and does not have the ability to petition for derivative status for immediate relatives.

Read the Law: 8 USCA § 1158
Read the regulations: Code of Federal Regulations, Title 8, Chapter 1, Subchapter B, Part 208

 

What is Convention Against Torture (CAT) protection?

Protection under the Convention Against Torture (CAT) provides relief similar to withholding of removal. If you are granted protection under CAT, the U.S. government cannot return you to a country where you would be in danger of being subjected to torture. 

To qualify, you must meet the same “more likely than not” standard that applies to withholding of removal. The key difference is that you must show that the harm you face meets the definition of "torture" under the CAT. Torture is defined as any intentional unlawful infliction of severe physical or mental suffering or pain, with consent of a public official, for purposes such as punishment, obtaining a confession, intimidation, or discrimination. You will need to submit convincing evidence showing that you are more likely than not to be tortured.

Like withholding of removal, protection under CAT is a mandatory form of protection. If you meet the requirements of the protection, the judge must grant you this form of relief. An advantage of protection under CAT is that there are no bars to eligibility. Additionally, applicants are not required to establish that their fear of torture is on account of race, religion, nationality, political opinion, or membership in a particular social group.

Read the Law: Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment
Read the regulations: Code of Federal Regulations, Title 8, Chapter 1, Subchapter B, Part 208
 

Source
Heather Benno, Managing Attorney (Esperanza Center, Catholic Charities of Baltimore)
Source URL: https://www.peoples-law.com/asylum

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