Asylum

Asylum can be requested either affirmatively or defensively. An affirmative asylum application is filed by someone directly with the USCIS. When someone is in removal proceedings, He/she files his/her application with the immigration judge who is charge of his/her case.

Asylum, in general, is granted to someone who can demonstrate that he/she has been persecuted, or that he/she has a well founded fear of persecution, on account of one of the following grounds: (1) political opinion; (2) nationality; (3) race; (4) religion; or (5) membership in a particular social group.

There is a requirement that one file for asylum within one year of arriving in the United States. Under certain circumstances, the deadline can be extended.

Regardless of how strong a claim may be, an application for asylum can be denied if: (1) the applicant has a serious criminal history; (2) before he/she came to the USA, the applicant had firmly resettled in another country; or (3) there is somewhere in his/her country where the applicant could live safely.

If a person is granted asylum, he/she cannot be deported and may apply for permanent residency one year after being granted asylum.

Withholding of removal is similar to asylum. In general, withholding of removal is granted to someone who can demonstrate a clear probability of future persecution on account of one of the following grounds: (1) political opinion; (2) nationality; (3) race; (4) religion; or (5) membership in a particular social group. There is no time limit for filing for withholding of removal. In order to win a withholding of removal claim, a person must demonstrate a higher probability that he/she will be persecuted than in an asylum case. Withholding of removal is country specific, so that if there is a third country to which the alien can be deported, and where he/she will not be harmed, ICE is allowed to send the applicant to that country. Finally, a grant of withholding of removal does not provide the alien a basis for applying for permanent residency.

Relief under the United Nations’ Convention Against Torture, or CAT, is granted to an individual who demonstrates that it is more likely than not that he/she will be tortured, if returned to his/her country of origin (or country of last residency). There is no time limit for applying for CAT relief. Like withholding of removal, CAT relief is country specific, and does not entitle the person to apply for permanent residency.