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One defense to removal is establishing a claim under the Asylum law of the United States. The written application is only one. But there are three sub-defense. 1) Asylum 2) Withholding of Removal 3) Protection under the Convention Against Torture (CAT).

What is Asylum and what are the requirements?

The asylum seekers must file the application within 1 year of arrival.  Unless there are changed circumstances that affect eligibility for asylum. Or extraordinary circumstance which were the reason for not filing within 1 year.

The threshold requirement for asylum is establishing to be a “refugee”. The definition includes demonstrating unwilling or unable to return to 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 face persecution. A fear may be well founded “even if there is only a slight, though discernible, chance of persecution.” The persecution must be based on race, religion, nationality, membership in a particular social group, or political opinion.

What are the benefits of Asylum?

The government cannot send Asylees back to their home country. Asylees can apply for work authorization in the US, can obtain a Social Security card. A big benefit is that can petition family members to the United States. Another benefits is being able to apply to some government programs, such as Medicaid, food stamps, and others.

After one year in asylee status can then apply for Adjustment of Status (green card).

What is Withholding of Removal (WOR)?

An asylum application is by default also one for a withholding of removal . Which means that if the Judge denies asylum, you may still be eligible for 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.

With withholding of removal, the government cannot send one to the home country of persecution. Therefore one can remain in the United States. Can obtain a work permit to work legally. For WOR the immigration judge enters a deportation order which also instructs the government not to execute that order.  

What disqualifies you from WOR?

Conviction of a particularly serious crime, being a danger to the community. In addition a serious non-political crime outside the United States.

What is the burden of proof for WOR?

The standard is higher than for asylum. For WOR the standard is “more likely than not” that your life or freedom would be threatened based on race, religion, nationality, membership in a particular social group, or political opinion.

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