Political Asylum and Withholding of Removal

 

INTRODUCTION

 

America welcomes the weak, the beaten and the tortured masses seeking to escape the life threatening persecution of their home countries through the immigration process known as political asylum or withholding of removal. Not every immigration attorney is qualified to represent those refugees seeking asylum. This is not only an immigration process but a human rights issue that requires knowledge of country conditions, the use of human rights experts, sophisticated documentation and presentation skills, excellent witness preparation and presentation, the ability to walk a tortured soul through that nightmare that was their personal persecution and intimate knowledge of the law.

If an asylum seeker is denied the right to stay in the United States, they may have to return to the living hell from which they are seeking asylum. Most refugees will find their protection under Article 3 of the Convention Against Torture and will make that plea for political asylum using the Form I-589 which is a joint application for Asylum and Withholding of Removal.

ASYLUM

In order to apply for asylum the alien must be a refugee who is defined as any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to avail himself or herself of the protection of, that country because of a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. See INA Sec. 101(a)(2). Refugee is now inclusive of people, who have been subject to or fear a “coercive population control program” such as forced sterilization, etc. or can demonstrate past persecution or a well-founded fear based on political affiliation. Indeed the applicant bears the burden of showing a “reasonable probability” of persecution. Asylum requires a lesser standard of prove than the following withholding of removal relief.

An Asylum seeker ­must file their FORM I-589 application within one year of arriving in the United States. An asylum applicant does not need to file a separate application for withholding of removal. The asylum application will serve as an application for withholding of removal.

BARS TO ASYLUM

Immigration Asylum seekers face certain mandatory bars to relief:

Anyone who has persecuted another.
Anyone who has been convicted of serious crime is a danger to society (aggravated felony.)
Anyone who is a security risk to the US.
Anyone believed to have committed a serious nonpolitical crime outside the US.
Anyone involved in terrorist activity.
Anyone who has not filed within one year of entry into the US.
Anyone firmly resettled in another country.
Canadian arriving persons are removed back to Canada on a bilateral agreement.
Anyone who has a previously denied asylum application.

THE ASYLUM PROCESS

Any immigration application that was knowingly made with a deliberately fabricated material element is frivolous and will render the immigration applicant permanently ineligible for any of the benefits of the immigration laws of the United States. However, an alien must be given the opportunity to correct what appear to be discrepancies or implausible aspects.

Anyone arriving at a port of entry to the United States without proper or legitimate documentation will face expedited removal unless they express intent to file for asylum or a fear of persecution. If the arriving alien without papers intends to invoke the asylum process they will be detained throughout. At the interview with the Department of Homeland Security (DHS) must find a “credible fear of persecution.” No credible fear equals a denial to which the refugee may request and immigration judge’s review to determine if credible fear exist, usually within seven (7) days. There is an exception for refugees arriving from Western Hemisphere countries with whom the United States does not have a relationship (i.e. CUBA.)

The standard for “credible fear” is a discretionary call by the interviewing officer to determine if there is a significant possibility that the refugee could establish a case for asylum.

APPLICATION FOR ASYLUM

Where do you file your application?

That depends on your status. If you have not been arrested or placed in removal proceedings by DHS, you file with DHS. If you have been arrested or referred for removal proceedings then you file with the immigration court. If a person is “out-of-status” and DHS does not grant their application it is referred to an immigration judge who will conduct a full hearing.

When do you file?

You must file within one year of arriving in the United States, unless the applicant demonstrates either the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing the application within the one-year period.

BIOMETRICS

Each applicant will receive a notice to appear for finger prints. Asylum applicants do not have to pay the usual $80 fee.

NOTE: A lawful asylum application will relieve the applicant from having an unlawful presence in the United States while the application is pending unless the applicant works without authorization which will place them in an unlawful status immediately.

ASYLUM INTERVIEW

An applicant may have an attorney present while the Asyulm officer conducts a “nonadversarial” interview. These interviews are ideally to last about 1.5 to 2 hours but each interview has a life of its own. The applicant usually will sit for the interview within 45 days of filing unless there are exceptional circumstances.

DHS does not provide interpreters so an applicant must bring their own. The interpreter must be over 18 and fluent in English and the applicant’s language; however, the attorney and any witness cannot serve as the interpreter. If the applicant does not bring an interpreter then the DHS officer can deem this a failure to appear which can equal an automatic denial or referral to an Immigration Judge.

There is no record made at these interviews as they are not recorded. Upon a denial the officer will prepare a referral to the court with an explanation of their opinion. If the application is granted, you can stop reading here.

COURT HEARING

If the application is referred by DHS, prepare for a hearing in front of an immigration judge. The applicant has the right to counsel at their own expense. The court will provide an interpreter upon request. In this hearing the applicant is afford an opportunity to present their case which is contrary to the DHS interview in which they are mostly cross-examined. While the rules of evidence do not apply, the court will usually allow admission of evidence that is relevant. When presenting witnesses the attorney should still avoid leading on questions. Immigration judge’s may interrupt the applicant, ask questions and run their court room as they choose. Since a record is created the proceedings can be reviewed if an appeal is filed with the Board of Immigration Appeals (BIA)

On the other side of the hearing is the trial attorney who represents the Department of Homeland Security. The trial attorney will have the original application filed and access to the country conditions report which looks into human rights issues in each country. The country report can be downloaded on the DOS website. Get it, review it and file it if helpful.

WITHHOLDING OF REMOVAL

Withholding of Removal is based on the same five categories as asylum: if a person’s life or liberty would be threatened in their home country because of the applicant’s race, religion, nationality, membership in a particular social group or political opinion then the Attorney General should exercise discretion not to deport or remove that person. It is Article 33 of the Convention Against Torture that provides for withholding of removal. Indeed the applicant bears the burden of proof in convincing with a “clear probability or persecution” upon return.

It is important to note that withholding of removal means that the US will not send the applicant back to that country from which they came. But what about another country? Well that is still possible if the US so chooses because a grant of withholding does not allow for future permanent residence.

BARS TO WITHHOLDING

Applicants must be aware of certain bars to withholding of removal relief:

Acting as a persecutor.
A conviction of a serious crime creating a danger to society.
Having committed a serious nonpolitical crime outside the US.
Creating a security risk to the US.
Conviction of an “Aggravated Felony” with a sentence of five years or more.
Having engaged in terrorist activity.

NOTE: There is not a one-year time requirement for filing a FORM I-589 for a withholding of removal as there is in an asylum application.

FREQUENTLY ASKED ASYLUM AND WITHHOLDING QUESTIONS

What is persecution?

Persecution is when any person suffers physical or mental abusive based on one of the five listed characteristics: race, religion, nationality, membership in a particular social group, or political opinion. It is important to note that persecution is considered in light of all of the circumstances; however, certain brutal acts such as imprisonment and torture, rape, murder, etc. are definitive of persecution.

What is not persecution?

Unfair treatment, economic hardship, discrimination, prosecution for a crime are not enough to raise to persecution for asylum purposes.

Who can be a persecutor?

While this is usually the government or their agent, it may be anyone or any group the government refuses to control.

Is past persecution enough for asylum?

Almost, a proper showing of past persecution will meet the definition of refugee necessary for asylum. Once a showing of past persecution is made, the applicant must make a showing of a well-founded fear of future persecution for a grant of discretion.

Note: showing past persecution shifts the burden of proof to DHS to show by a “preponderance of the evidence” that there has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution in the asylum application or “would be threatened” in the withholding application; or the applicant could simply relocate to another part of the country if reasonable to do so.

If the country conditions have changed such that a safe return is possible, the applicant has one last chance to show a “compelling reason” why they should not be made to return.

What if there is no past persecution? Is there future persecution?

Yes, if the applicant can show both their legitimate subjective fear in a way that creates an objectively reasonable showing of a well-founded fear. It is highly advisable for the applicant to seek to prove the objective requirement through expert testimony and thorough documentation of harm to others like them.

What the definition of a well-founded fear?

To have a well-founded fear the immigration applicant must show that they have a characteristic that a persecutor would seek to crush and the persecutor is aware or will be of the applicant’s characteristic and the persecutor has the ability to inflict harm on the applicant and the persecutor is inclined to persecute the applicant.

THE FIVE LISTED CATEGORIES.

“On Account Of”

It is important to note that the INA requires an immigration application for asylum or withholding to be “on account of” one of the five listed categories: race, religion, nationality, membership in a particular social group, or political opinion. However, the Convention Against Torture does not have this requirement. So, an immigration applicant must provide evidence that the persecutor was acting in relation to one of the five listed categories.

Race.

Herein the immigrant must show that they were persecuted because of their race, usually some combination of their color of skin and ancestry.

Religion.

The immigrant must show that their belief in a higher power is the basis for their well-founded fear. A problem lies with the applicant that flew under the radar in their home country and avoided harm by hiding their beliefs. The courts have issued conflicting decisions about this situation.

Nationality.

A refugee must demonstrate that their spoken language or ethnic group has put them in the line of fire of the persecutor.

Membership in a Particular Social Group.

This is defined as a group that “shares a common immutable characteristic.” In light of the recent focus on life in the middle east, there is a renewed focus on women as a social group and deprivations of their freedom as grounds for asylum.

Political Opinion.

In countries where dictators rule, the protestor or opposition party often suffers inhumane torture and constant threat of persecution.

If asylum is granted applicant is illegible to apply for adjustment of status (green card) after one year from the date asylum was granted. Applicant that was granted asylum is also eligible to bring his/her spouse and children under the age of 21 to the United States.