Our asylum practice emphasizes obtaining relief as a defense in removal (deportation) proceedings for aliens inside of the U.S. who have suffered from persecution in their home countries. In most cases, aliens who have been ordered into removal proceedings have had their asylum applications previously denied by the U.S.C.I.S. (United States Citizenship and Immigration Services).
An individual who has been previously denied asylum and placed in removal proceedings, however, can file make another application for asylum in immigration court through a competent immigration attorney. If the application is granted by the immigration judge ( IJ ), then the asylee will be granted relief and allowed to remain in the U.S.
The term "asylum" encompasses three (3) general types or forms of relief. These three (3) types of relief fall into two basic categories: past persecution and a well-founded fear/threat of future persecution.
The first type or form of relief is known as asylum. The requirements to be granted asylum are: 1) The application is filed within one year of entry to the U.S. 2) the applicant establishes past persecution or a well founded fear of future persecution in their home country on account of race, religion, nationality, membership in a particular social group, or political opinion.
A person granted asylum is entitled to obtain an employment authorization document ( E.A.D.) and can adjust status to permanent residency after one year of being granted asylum. Obtaining asylum relief is the easiest of the three forms of relief.
The second type of relief available in removal proceedings is Withholding of Removal. This form of relief requires that the alien establish a well-founded fear of persecution that is more likely than not if returned to the home country. The standard of proof for Withholding of Removal must be established by "clear and convincing evidence" which is a more difficult standard than the asylum standard discussed above.
To be granted Withholding of Removal by an IJ, an alien must demonstrate that the alien's life or freedom would be threatened in that country because of the alien's race, nationality, religion, membership in a particular social group, or political opinion. The alien must have a fear of persecution 2) the fear must be reasonable 3) the persecution feared must be on account of one of the five categories and (4) the alien must be unable or unwilling to return to his or her country of nationality because of his persecution or well founded fear of it.
In the context of asylum relief, "Persecution" means "A threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive. This includes confinement, torture, severe economic hardship, relegation to substandard dwellings, exclusion from institutions of higher learning, enforced social and civil inactivity, passport denial, constant surveillance, pressure to become an informer, and mental abuse or threats." If Withholding of Removal is granted by an IJ , you may obtain work authorization ( EAD ) but you cannot adjust your status to become a lawful permanent resident.
The third type of relief under the general asylum category is relief under the Convention Against Torture (CAT). This is the most difficult of the three to establish. In order to be granted relief under CAT by an immigration judge in removal proceedings, an alien must establish the likelihood of 1) "infliction of severe pain or suffering, either physicals or mental, not arising only from, inherent in or incidental to lawful sanctions 2) intentionally inflicted 3) by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."
It should be noted that Withholding and deferral of removal under CAT could be revoked at any time by a U.S.C.I.S. motion for a hearing to establish that the threat of torture no longer exists. If the relief is revoked, then the alien can be returned to the home country. It is therefore advisable to file an asylum claim within one year of entering the U.S. As previously noted, an asylum grant allows the alien to file for adjustment of status to become a lawful permanent resident after one year while the other two forms of relief do not. Asylum relief in all three forms can be granted in cases even where the asylee entered the U.S. without inspection.
It is important to have a competent immigration asylum and removal attorney to represent you in such matters. An experienced attorney will be able to prepare your case by establishing each of the required elements with competent evidence for the particular type of relief sought. The attorney will also assist in establishing the alien's credibility, a central factor in an immigration judge's decision as to whether or not to grant asylum relief.
Please contact us so that we may provide further assistance.
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