Asylum, Withholding of Removal and CAT
Asylum can be sought after in United States should the individual in question have fear of returning to his or her country. Asylum applicants should become familiar with how to apply for Asylum, Withholding of Removal, the Convention Against Torture (CAT) in the United States, and seeking refugee status if abroad. At Borja Law Firm, our team has helped thousands with their Asylum cases and can do the same for you.
To obtain Asylum in the United States, the individual must demonstrate a “well-founded fear of persecution” based on any one of the following:
(1) political opinion,
(4) nationality, or
(5) membership in a particular social group.
Refugees are subject to the same criteria. In fact, the Refugee Act of 1980 binds U.S. immigration laws with a number of United Nations conventions and protocols. It must be noted that the fear of persecution must be either caused by the government of the individual’s country or a group that the government is unable or unwilling to control.
Applicants must establish “persecution,” and in doing so raise the presumption that he or she has a well-founded fear of persecution in his or her country. In such cases, it becomes the responsibility of the government to prove that circumstances in the individual’s country have changed and that he or she no longer has a well-founded fear of persecution or that the individual can successfully avoid persecution and reasonably deal with it by moving to another part of his or her country.
If the individual in question is in lawful immigration status in the United States already, he or she can apply for Asylum (Form I-589) directly with USCIS. If his or her application is denied, then he or she will remain in status; but if the individual is not in lawful status, then the application will be forwarded to an Immigration Judge.
In order to be eligible for Withholding of Removal, the individual must prove that he or she will most likely be persecuted if they return to their country of origin. This calls for a higher possibility of persecution than the one imposed by the “well-founded fear” standard for Asylum, which only requires that a person meet at least a 10% chance of being persecuted. In addition, unlike Asylum, if you are granted Withholding of Removal or relief under the Convention Against Torture, it doesn’t lead to a grant of a green card.
If an individual is in removal proceedings, he or she may be eligible to apply for Withholding of Removal and for relief under the Convention Against Torture (CAT). The six elements of torture under CAT are:
(1) an intentional act,
(2) infliction of severe pain or suffering,
(3) under the custody or control of the offender,
(4) for a broad array or wrongful purposes,
(5) by or sanctioned by a public official, and
(5) not arising out of lawful sanctions.
However, if the United States government can prove that the individual has “firmly resettled” in a third country, the person no longer qualifies for Asylum, Withholding of Removal, and CAT.
Lastly, a person usually must apply for Asylum within a year after arriving to the United States, but there are–as in other situations– exceptions to this rule.
Cancellation of Removal
Cancellation of Removal is an immigration benefit whereby permanent residents and nonpermanent residents, under certain conditions, may apply to an immigration judge to adjust their status from that of deportable alien to one lawfully admitted for permanent residence.
These cases are complicated, requiring a lot of documentation and expertise. The Borja Law Firm has worked on countless of these applications and can bring their experience to assist you in your case.
The eligibility requirements differ between aliens who are lawful permanent residents and those who are nonpermanent residents.
To be eligible for Cancellation of Removal, a permanent resident must show that he/she has:
(1) Been a lawful permanent resident for at least five years,
(2) Continuously resided in the United States for at least seven years, and
(3) Not been convicted of an aggravated felony.
Nonpermanent residents must establish that he/she has:
(1) Been physically present in the United States for a continuous period of 10 years,
(2) Been of good moral character during the 10-year period,
(3) Not been convicted of select criminal offenses, and
(4) that removal would result in exceptional and extremely unusual hardship to U.S. citizen or lawful permanent resident family members.
The Immigration Judge has discretion to grant or deny Cancellation of Removal applications. In determining whether Cancellation is warranted, an Immigration judge has the discretion to look at all facets of an applicant’s life. Such considerations are length of residence in the United States, family and community ties in the United States, community service work, letters of recommendation, and employment, to name a few.
In addition to Asylum and Cancellation, there are other possible defenses to deportation and/or removal. The Borja Law Firm is familiar with all of them and can find the best defense for your case.
Applications for Permanent Residency/Adjustment of Status: While most green card applications are filed by those who are not in immigration court, it can also be used as a defense in removal proceedings. In most cases, the application for permanent residency — or “Adjustment of Status” — must be based on an approved immigrant visa petition, typically through an I-130 Petition demonstrating a relationship with a United States Citizen or Legal Permanent Resident family member.
Form I-751 Removal of Conditional Residence: It is not uncommon for a conditional permanent resident to be placed in removal proceedings if he or she fails to timely file the I-751 petition to remove the conditions on residence. It is also possible that one could be placed in court proceedings if said petition was denied. Regardless, the I-751 petition can be renewed as a defense to removal before an Immigration Judge.
Waivers: There are a number of waivers that could be utilized as a defense to deportation. Some, known as criminal waivers are available to certain residents who are deemed deportable because a crime. There are other waivers that are utilizes for overcome other deficiencies in a case, such as if one was held to be inadmissible or perceived fraud. It is worth noting that many of these waivers are used in conjunctions with other forms of relief.
U Visas: Certain victims of crimes who are helpful in an investigation of the crime may apply for U visa status and obtain work authorization in the United States. If the U visa is approved, removal proceedings can be terminated.
DACA: Certain individuals who were brought to the U.S. as children, attended school in the U.S. and have not been outside of the U.S. for too long can apply for DACA, or Deferred Action for Certain Childhood Arrivals.
Obviously, if you follow the news, you are aware that DACA has a complicated history and its overall availability is limited at this time. Before filing any DACA-related applications, any applicant should consult with an immigration lawyer to determine the current state of law.
Temporary Protected Status: At times, the United States designates certain countries for Temporary Protected Status, also known as TPS. These countries are designated as such if conditions in that country make it temporarily unsafe for a person to return (because of events such as hurricanes, earthquakes, etc.). Those from countries designated may be eligible for certain protections if conditions are met and done properly.
VAWA: Victims of certain crimes involving domestic violence may be eligible for relief under the Violence Against Women Act. These applications can serve as a defense to deportation.
Voluntary Departure: If no other deportation defense options are available, or in the event a person is eligible to return to his or her home country and obtain a visa to return to the United States, he or she may want to request voluntary departure in lieu of being ordered removed. In some cases, it may be what is best for a person’s case.
Even if a case has been denied by the Immigration Court, it does not necessarily mean that it is the end. Borja Law Firm has helped many immigrants with the complicated steps of appealing their case to the Board of Immigration Appeals and the Court of Appeals.
BOARD OF IMMIGRATION APPEALS: The Board of Immigration Appeals (“BIA”) is an administrative appellate body that is part of the U.S. Department of Justice. BIA decisions are the final administrative action in a removal proceeding. However, most BIA decisions can be appealed to the U.S. Court of Appeals. The BIA may affirm the decision of an Immigration Judge. Alternatively, the Board may either reverse or remand a Judge’s decision.
COURT OF APPEALS: If a case is denied by the Board of Immigration Appeals, it may be possible to appeal it again to the Court of Appeals. Such matters are complicated and it is highly recommended that you seek out an immigration attorney to assist you.