Asylum - Affirmative and Defensive Filings
Asylum is a form of relief that may and should be applied for affirmatively once you enter the United States. However, if you do not apply upon entry, it is a form a relief that you may apply for if you are placed into removal proceedings. That being said, the requirements are the same.
In order to qualify for asylum, you must establish that you are a refugee who is unable or unwilling to return to his or her country of nationality, or last habitual residence in the case of a person having no nationality, because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
If you are granted asylum, you and any eligible spouse or child included in your application will be permitted to remain and work in the United States and may eventually adjust to lawful permanent resident status.
Other important requirements:
You must be located within the United States.
You must file the application within 1 year after entering the United States (unless you can establish that there are changed circumstances that affect your eligibility for asylum or extraordinary circumstances that prevented you from filing within one year).
Withholding of Removal under the Immigration and Nationality Act (INA) & Withholding of Removal Under the Convention Against Torture Act (CAT)
If asylum is not granted, you may still be eligible for withholding of removal under the INA or under CAT.
In order to qualify for withholding of removal under section 241(b)(3) of the INA, you must establish that it is more likely than not that your life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion in the proposed country of removal.
If you obtain an order withholding your removal, you cannot be removed to the country where your life or freedom would be threatened. This means that you may be removed to a third country where your life or freedom would not be threatened.
***Withholding of removal does not adhere derivatively to any spouse or child included in the application. They would have to apply for such protection on their own. If you are granted withholding of removal, this DOES NOT give you the right to bring your relatives to the United States. It also DOES NOT give you the right to become a lawful permanent resident of the United States.
To be granted withholding of removal to a country under the Convention Against Torture, you must show that it is more likely than not that you would be tortured in that country.
"Torture" is defined in Article 1 of the Convention Against Torture and at 8 CFR sections 208.18(a) and 1208.18(a). For an act to be considered torture, it must be an extreme form of cruel and inhumanE treatment, it must cause severe physical or mental pain and suffering, and it must be specifically intended to cause severe pain and suffering.
Only immigration judges and the Board of Immigration Appeals may grant withholding of removal or deferral of removal under the Convention Against Torture. If you have applied for asylum, the immigration judge will first determine whether you are eligible for asylum under section 208 of the INA and for withholding of removal under section 241(b)(3) of the INA. If you are not eligible for either asylum under section 208 of the INA or withholding of removal under section 241(b)(3) of the INA, the immigration judge will determine whether the Convention Against Torture prohibits your removal to a country where you fear torture.
As implemented in U.S. law, Article 3 of the Convention Against Torture prohibits the United States from removing you to a country in which it is more likely than not that you would be subject to torture. The Convention Against Torture does not prohibit the United States from returning you to any other country where you would not be tortured. This means that you may be removed to a third country where you would not be tortured. Withholding of removal under the Convention Against Torture does not allow you to adjust to lawful permanent resident status or to petition to bring family members to come to, or remain in, the United States.
Contact Courtney Soria at 561-318-3600 to discuss whether you may have relief under one of these categories!
