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Asylum & Withholding of Removal

What Is Asylum?

Asylum is a relief allowing an alien to remain in the United States under legal status because he or she has suffered past persecution and/or fears future persecution. If you have suffered persecution in your home country or country of last habitual residence based on race, religion, nationality, political opinion, or membership in a particular social group or have fear of future persecution, then you may apply for asylum.

How does the asylum process work?

The two ways of obtaining asylum in the United States are:

  1. Affirmative process: To obtain asylum through the affirmative asylum process, you must be physically present in the United States. You may apply for asylum status regardless of how you arrived in the United States or your current immigration status. This should be within one year of date of entry unless you can show changed circumstances that materially affect your eligibility or extraordinary circumstances relating to the delay in filing. An affirmative application (I-589) is filed with USCIS. After your application is filed you are interviewed by the asylum officer. If you do not speak English, an interpreter may accompany you to the interview to translate. You may also have an attorney present with you during the interview. At the end of the interview, usually you will be asked to return to the asylum office on a certain date to get the decision of the case.
  2. Defensive process: For an application in response to removal proceedings, the asylum application is filed in the immigration court. A hearing will be set for the judge to hear evidence in support of and against the asylum application. An interpreter will be provided by the court, if needed. An attorney for the government will be present and will have the right to ask questions and argue against the granting of asylum. After all evidence and arguments are heard, the immigration judge will decide whether or not to grant asylum. You can consider taking advice of an expert immigration attorney.

Who may apply?

Any alien in the U.S. may apply for asylum. The alien need not be in legal status in the U.S., although an alien in legal status may apply for asylum without jeopardizing his or her legal status. Further, any alien in removal proceedings may apply for withholding of removal as well as asylum.

What is withholding of removal?

Withholding of removal is a relief that prevents removal to a country where the alien has a clear probability of suffering persecution based on race, religion, nationality, political opinion, or membership in a particular social group. Withholding of removal is only for those who are placed in removal proceedings. If USCIS is not trying to deport you, exclude you, or otherwise remove you from the United States, withholding of removal is not an available remedy.

Do I have to choose between asylum and withholding of removal?

No. You always seek asylum with withholding of removal being an alternative relief in the event that asylum is denied. Anyone seeking asylum will be considered to also be seeking withholding of removal. An expert immigration attorney will better help to prepare your claim.

What benefits are granted under asylum and withholding of removal?

When you are granted asylum, you acquire a legal status and several immigration benefits on the basis of your fear of persecution in your home country. Apart from the right to remain in the United States, you may also work in the U.S., bring family members to the United States from your home country, and eventually apply for permanent residency. On the other hand, withholding of removal is merely a means of not being removed to a country where there is likelihood that one would be persecuted. If you are granted withholding of removal, you may work in the United States as long as you are protected from removal. In certain circumstances a person may be denied asylum yet granted withholding of removal. Based on your facts, an immigration attorney can help you understand what best you can claim.

Can I apply for asylum even if there is no harm of future persecution in my country?

If you have suffered past persecution in your country, an Immigration Judge (or Asylum Officer) can grant humanitarian asylum even if you do not have a well founded fear of future persecution. To win asylum without fear of future persecution you have to prove that you may suffer “other serious harm” if you return to your country. This serious harm does not have to be related to the persecution you suffered in the past. Importantly, the serious harm you fear does not have to be on account of one of the five grounds. Other serious harm can include things like natural disasters and criminal activity. The judge or officer will look at the current conditions in your country and any physical or psychological harm you might suffer if you return. The judge will look at positive factors such as your family, employment, and even community activities. He or she will balance these positive factors with any adverse ones such as arrests, etc. The judge or officer will grant you asylum if your positive factors outweigh any negative ones. It is a good idea to consult with an experienced immigration attorney who can help you present your case to the judge.

Can I apply for asylum for my family?

Yes, a spouse and minor children who are in the U.S. can be included in your asylum application. If you do not include such relatives who are in the U.S., they will not qualify for asylum together with you. Instead, you will need to file a separate petition for them after your own asylum is approved. If they are out of the U.S., you may apply for their entry into the U.S. after you are granted asylum. An immigration attorney can help you through the entire process.

Do I need an attorney to file an asylum application?

You need to understand that the person making a decision on your asylum claim may not be familiar with your country or the political and social circumstances there. Thus, your asylum claims will be decided primarily on the evidence submitted and on the credibility of your written and oral statements. If you do not provide very detailed information in a well-organized manner, your claim for asylum will likely be denied, even if you have a genuine fear of persecution in your country. You also need to remember that time is of the essence in asylum applications. Because of the time limits on filing an asylum claim, it is important to begin the preparation of your application and the collection of evidence that will be submitted in support of your application, as early as possible.

How can we help you?

Our firm has successfully helped many eligible people to obtain asylum or withholding of removal. We have considerable experience in representing clients with asylum claims. Success of your claim will depend on your credibility, strength of the legal claim and ascertaining that no bars apply to you. We ensure that you comply with all the requirements. Our expertise includes knowing what is required in different situations. If you believe you may qualify for asylum, contact our office for further evaluation and information concerning possible services.

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