Asylum and Withholding of Removal related Protection
What is Asylum Relief?
Asylum protection is provided to an individual noncitizen residing within the United States who is unable or unwilling to return to his home country because the noncitizen cannot be protected by the home country because the noncitizen has suffered past persecution, or the noncitizen has a well-founded fear of being persecuted because of at least one of the following five reasons:
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Race;
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​Religion;
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Nationality;
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​Membership in a particular social group; or
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​Political opinion
Eligibility requirements.
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As stated, if the noncitizen is present in the United States, the noncitizen will be allowed to file the asylum application using form I-589 with the United States Citizenship and Immigration Service or USCIS. It is important to understand that the filing of the application must be made within one year of the noncitizen’s arrival into the United States. Furthermore, if the noncitizen is present with a spouse or child under 21 years of age and unmarried, spouses and children can be included in the application.
Bars to Applying for Asylum
You may not be eligible to apply for asylum if:
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Did not comply with the 1-year filing deadline for filing an application for asylum within 1 year of your last arrival in the United States,
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Had a previous asylum application denied by an immigration judge or the Board of Immigration Appeals,
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Can be removed to a safe third country under a 2-party or multi-party agreement between the United States and other countries.
Bars from a Grant of Asylum
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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,
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Were convicted of a “particularly serious crime” such that you are a danger to the United States,
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Committed a “serious nonpolitical crime” outside the United States,
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Pose a danger to the security of the United States,
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Have been firmly resettled in another country before arriving in the United States,
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An applicant is inadmissible if the applicant:
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Haz engaged in terrorist activity,
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Are engaged in or are likely to engage after entry in any terrorist activity,
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Has incited terrorist activity,
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Is a representative of a foreign terrorist organization,
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Is a member of a terrorist organization,
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Has persuaded others to support terrorist activity or a terrorist organization,
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Has received military-type training from or on behalf of any organization that, at the time the training was received, was a terrorist organization,
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Is the spouse or child of an individual who is inadmissible for any of the above within the last 5 years.
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Asylum in Removal Proceedings.
If the noncitizen is placed in removal proceedings, the noncitizen with any dependent family members can also file a defensive asylum application before the immigration court also known as the executive office of immigration review or EOIR to attempt to prevent the immigration judge from signing a removal order based on the judge granting the asylum application.
Withholding of Removal.
Withholding of Removal is a benefit that can only be requested before an Immigration Judge. As in the case of asylum, a person who is granted withholding of removal is protected from being returned to his or her home country and receives the right to remain in the United States and work legally, but at the end of the court process, an immigration judge enters a deportation order and then tells the government they cannot execute that order. That is, the “removal” to a person’s home country is “withheld.” However, the government is still allowed to deport that person to a different country if the other country agrees to accept them. Withholding of removal provides a form of protection that is less certain than asylum, leaving its recipients in a sort of limbo. This benefit is an option when the noncitizen is generally disqualified from Asylum relief as we have mentioned previously.
Withholding of Removal under the Convention Against Torture.
Similar to regular Withholding of Removal where the benefit granted is a suspension of a removal order, but in this case the applicant must demonstrate that it is more likely than not that he will be tortured if removed to their country of origin. The Board of Immigration Appeals has found that torture “must be an extreme form of cruel and inhuman punishment” that “must cause severe pain or suffering.” There are no bars to eligibility for relief under CAT. Therefore, aggravated felons can make claims for relief if they fear torture. 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.
Work Authorization.
After the I-589 is filed with either USCIS or EOIR, if the application has taken more than 150 days to process, the noncitizen can then apply for an employment authorization document or EAD with USCIS. USCIS will grant the EAD after the Asylum application is pending for another 30 days. This work authorization will need to be renewed every year while the application is pending before either USCIS or EOIR. In some cases, if a noncitizen was paroled into the United States most often because the noncitizen was seeking asylum at a border checkpoint, the noncitizen may be eligible to request an EAD before the 150-day time period has passed based on the entry into the United States on parole. It should be noted however, that the parole-based EAD will be granted for the time granted on parole which is for a limited time and likely won’t allow for a renewal. Fortunately, in most of these cases, the noncitizen may be able to apply for a later EAD based on the passing of the 150-day time period if a renewal cannot be made on the basis of the parole entry.
A work authorization can also be requested after the Asylum application has been approved with the right to renew when the EAD is expiring.
Benefit Granted.
Asylum.
As stated, the granting of an asylum application will allow the noncitizen to remain in the United States for an indefinite period, however, the greatest benefit is that the noncitizen can apply for legal permanent resident status or a green card one year after having been granted asylum status. Dependent family members will also receive the same benefits including the right to apply for a green card.
Withholding of Removal.
A person who is granted withholding of removal may never leave the United States without executing that removal order, cannot petition to bring family members to the United States, and does not gain a path to citizenship. And unlike asylum, when a family seeks withholding of removal together a judge may grant protection to the parent while denying it to the children, leading to family separation. Withholding of removal also does not offer permanent protection or a path to permanent residence. If conditions improve in a person’s home country, the government can revoke withholding of removal and again seek the person’s deportation. This can occur even years after a person is granted protection. Some individuals, including those who were convicted of “particularly serious crimes,” are not eligible for withholding of removal. These individuals are limited to applying for relief under the Convention Against Torture, a protection that is harder to win than withholding of removal and that offers even fewer benefits.
A work authorization can also be requested after the Asylum application has been approved with the right to renew when the EAD is expiring.
Denials.
If the case is presented before USCIS and the case is denied, the case will likely be referred to an Immigration Judge to allow the judge fully to review the application to consider either confirming the denial by the USCIS officer or issuing a different decision granting the asylum application regardless of the USCIS officer’s decision.
If an immigration judge denies the asylum application regardless of whether it was a case referred from USCIS or a defensive application filed by a noncitizen who was placed in removal proceedings either because the noncitizen sought asylum protection at a border checkpoint or because the noncitizen was detained in the United States for violating an immigration law, the judge’s denial order will also be a removal order that could potentially lead to the noncitizen’s removal from the United States. In many cases upon the denial by the immigration judge, the noncitizen will also have the right to file an appeal of the judge’s decision before the Board of Immigration Appeals to attempt to have the decision of the immigration judge reversed. The noncitizen can further appeal a denial from the Board of immigration Appeals to a higher court known as the Court of Appeals, but decisions to appeal should be consulted with an attorney as well.
Asylum cases are very complex cases. Therefore, it is highly recommended to consult with one of our immigration attorneys to discuss your case and help you with presenting your application to have the greatest chances of success.