Asylum is an option that foreigners may utilize to legally remain within the United States. An alien may apply for Asylum if they fear returning to their home country because of some harm they have received in the past or because they are afraid of some harm they will likely suffer in their home country in the future. Our asylum attorneys can help guide you through the requirements for meeting your burden of proof.
To fully qualify for asylum, the applicant must show that the past harm or the fear of future harm is related to the alien’s race, religion, nationality, political beliefs, or membership in a particular social group. If you are granted asylum in the United States, you will be able to remain legally in the country, secure a job and obtain government benefits.
- Only those who are currently residing within the United States may apply for asylum. To qualify for Asylum, the application must be completed and submitted within one year of the alien’s last arrival with certain exceptions.
- Any applications submitted more than one year after the alien’s last arrival will be applications for Withholding of Removal and Protection Under the Convention Against Torture, with limited exceptions to this rule.
- For an individual to obtain asylum or refugee status, there must be proof that the individual:
- Has a well-founded fear of persecution/harm in her home country; and
- The persecution/harm is because of the individual’s religion, race, nationality, membership in a particular social group or political opinion.
There are two ways to apply for Asylum:
- Affirmative Asylum: Applications are submitted by those applicants who are in the United States but who are not in removal or deportation proceedings and who do not have a hearing in Immigration Court. These cases are filed with US Citizenship and Immigration Services and the application must be filed before the one year anniversary of the applicant’s arrival in the United States.
- Defensive Asylum: If you are in removal or deportation proceedings, except in certain cases involving children, you may file for defensive asylum by submitting your application to the immigration court in the jurisdiction where you live. If you have resided in the United States for longer than one year, you may also be eligible for relief known as Withholding of Removal – this relief is also based on the applicant’s fear of returning to their home country, but it is only available in removal proceedings before an immigration judge.
Both asylum and withholding of removal place a significant burden of proof on the applicant, so it is extremely important to have an effective asylum immigration attorney by your side who can guide you through these difficult processes.
Asylum and Withholding of Removal are two very complicated facets of immigration law – let our asylum law firm help you determine which path is best for you and your family. Contact us today!
Withholding Of Removal
Withholding of removal is similar to asylum in that an individual must prove that there is some type of threat to his or her life or freedom. The applicant must show that this threat is connected to either race, religion, nationality, political opinion, or membership in a particular social group. The main difference between Asylum and Withholding of Removal is that the risk of harm that you’ll need to show for Withholding is much higher than it is for Asylum.
An applicant for Withholding of Removal must show that it is “more likely than not” that his or her life or freedom will be threatened if he or she is returned to his or her home country. Thus, there must be a more than 50% chance of threat to the individual’s well-being if the applicant returns to his or her home country.
A successful Withholding of Removal claim allows the recipient to remain in the United States for an indefinite period. During their stay, the recipient is allowed to apply for and maintain a valid employment-authorization document. It is important to note that Withholding of Removal does not provide relief for eligible family members in the United States like Asylum does, nor does it allow the recipient to petition for eligible family members outside of the US.
Withholding of Removal does not allow the recipient to apply for lawful permanent residence, and a withholding of removal status adjustment is not a pathway to US citizenship. A person granted Withholding of Removal is not allowed to travel outside the US and will be barred from returning if they do travel internationally.
Convention Against Torture
This type of relief is meant for individuals that can prove that there is a strong likelihood of being tortured if they are returned to their home country. These individuals may qualify to remain in the United States or be removed to a “safe third-country” that will accept them. Like Withholding of Removal, if you are granted protection under CAT, you are not entitled to become a permanent resident and obtain a green card, but you may qualify to apply for an employment authorization, allowing you to reside and work legally in the United States.
U.S. law defines torture as “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 her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind.” To qualify for CAT protection, the torture must be done by or at the request of the government or with the permission or agreement of the government.