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ASYLUM AND WITHHOLDING OF REMOVAL, AND CAT

One defense to removal is establishing a claim under the Asylum law of the United States. Even though there is one application, there are technically three sub-defenses – 1) Asylum, 2) Withholding of Removal, 3) Protection under the Convention Against Torture (CAT).

Asylum

The asylum application must be filed within 1 year of arrival in the United States, unless one can show that there are changed circumstances that affect their eligibility for asylum or extraordinary circumstances that prevented them from filing within 1 year.

The threshold requirement for an application for asylum is if one can establish that he/she is an individual who qualifies as a “refugee” within the meaning of INA §101(a)(42). The definition includes the requirement that the asylum applicant demonstrate that he or she is unwilling or unable to return to his or her home country because of past persecution or a “well-founded fear” of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

The asylum applicant’s burden of proof is to demonstrate that there is a “reasonable possibility” that he or she will be persecuted[1]. A fear may be well founded “even if there is only a slight, though discernible, chance of persecution.”[2] The applicant must also establish that race, religion, nationality, membership in a particular social group, or political opinion “was or will be at least one central reason for persecuting the applicant.”[3]

If asylum is granted, the applicant can then apply for Adjustment of Status and permanent residence.

Withholding or Removal

An asylum application is by default also considered to be one for a withholding of removal under Section 241(b)(3) of the INA. Which means that if the asylum application is not granted, you may still be eligible for a withholding of removal. However, a withholding of removal does not allow for adjustment of status, which means that you will not be able to apply for permanent residence.

Some factors which disqualify from protection are

Conviction of a particularly serious crime, and thus represent a danger to the community of the United States.Have committed a serious non-political crime outside the United StatesOr represent a danger to the security of the United States

To qualify for withholding of removal, 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.

 

[1] INS v. Cardoza-Fonseca, 480 U.S. 421, 438-439 (1987)

[2] Diallo v. INS, 232 F.3d 279, 284 (2d Cir. 2000)

[3] See Cardoza-Fonseca, supra note 1.

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