Asylum and Withholding of Removal
To qualify for asylum (INA section 101(a)(42)(A)), a foreign national or person having no nationality, must demonstrate that they are a refugee that is either unable or unwilling to return to their country of nationality or country of last habitual residence, as a result of persecution or well-founded fear of persecution on the basis of five statutorily protected grounds including: race, religion, nationality, membership in a particular social group, or political opinion. An asylum application is also considered a request for withholding of removal from the United States. Additionally, asylum seekers may seek protection from removal under the convention against torture. Article 3 of the Convention Against Torture explicitly states that the United States may not remove an individual who would more than likely be subject to torture in their country of nationality or habitual residence.
In order to qualify for asylum, the applicant must prove that the required “nexus” (or connection) exists between their persecutor’s motive and one or more claimed grounds. Persons who have ordered, incited, assisted, or participated in the persecution of any person based on race, religion, nationality, membership in a particular social group, or political opinion will not be considered for refugee status. Additionally, persons who have committed serious offenses equivalent to aggravated felonies may not qualify for asylum. There are two different ways to obtain asylum. The first is through Affirmative Asylum Processing and the second is through Defensive Asylum Processing.
This graphic, created by Human Rights First an independent advocacy organization, illustrates the asylum and refugee resettlement process.
Refugees may apply for asylum through affirmative asylum or defensive asylum regardless of their immigration status unless they are found removable to a safe ‘third country’ based on a two-party or multi-party agreement between the United States and other countries (INA 208 (2)(A)).
Asylum seekers who have been denied asylum in the past by an immigration judge or Board of Immigration Appeals (BIA) must demonstrate that a material change in their circumstances has occurred since last filing allowing them to make a new asylum claim. A material change is a substantial alteration in circumstances which CIS will rely on when determining the merits of the asylum claim. Asylum recipients can eventually adjust their status to permanent residence. Capturing the applicant’s biometrics is a required part of the application process for both the affirmative asylum and defensive asylum processes.
Statute of Limitations
USCIS Form I-589 Application for Asylum and for Withholding of Removal must be filed within 1 year of the asylum seeker’s last arrival to the United States. Exceptions exist to overcome this requirement however the applicant will need to provide clear and convincing evidence that extraordinary circumstances prevented them from filing their application on time or that new circumstances warrant a consideration of material change. There is no filing fee for USCIS Form I-589 Application for Asylum and for Withholding of Removal.
Affirmative Asylum Overview
Asylum seekers residing lawfully in the United States or seeking lawful entry to the United States through a port of entry, can apply for asylum through the affirmative asylum process. The affirmative asylum process generally culminates in an interview conducted by an Asylum Officer, who will determine whether the applicant will be granted asylum. Exceptions to the interview requirement exist for certain alien crewmembers, stowaways, visa waiver program applicants, visa waiver overstays, status violators, witnesses, informants, and others who, instead of having an interview, must appear before an immigration judge for an asylum-only hearing.
The affirmative asylum process allows asylum seekers to remain in the United States while their asylum application is pending with CIS, or before an immigration judge if the I-589 application has been denied by CIS. Affirmative asylum applicants who are denied will be issued a Notice to Appear (NTA) before immigration court and their case will fall under the jurisdiction of the Executive Office for Immigration Review (EOIR) for a hearing before an immigration judge. In order words, applicants who are denied through affirmative asylum processing will be able to argue their case through defensive processing with the EOIR. Affirmative asylum applicants are generally not detained by the United States Immigration and Customs Enforcement (ICE). For a step by step guide on the affirmative asylum process please click here.
Defensive Asylum Overview (EOIR)
Asylum seekers facing removal proceedings may apply for asylum and withholding of removal as a defense against deportation from the United States before an immigration judge with the Executive Office for Immigration Review (EOIR). In order to apply for defensive asylum, the applicant must be in removal proceedings. Undocumented victims of persecution who are apprehended by Customs and Border Protection or at a U.S. port of entry are placed in removal proceedings. An asylum officer will conduct a credible fear interview and determine whether the alien has been persecuted or maintains credible fear of harm based on at least one of the five statutorily protected grounds. If the alien has a legitimate fear of persecution they may apply for asylum before an immigration judge in court. An adverse decision made by an immigration judge can be appealed with the Board of Immigration Appeals (BIA).
Your spouse and unmarried children under the age of 21 can be included in your I-589 application for asylum and withholding of removal if they are physically present in the United States. If your child is over the age of 21 or is married, they must file a separate I-589 asylum application. If your spouse or unmarried children under the age of 21 are outside of the United States at the time you are granted asylum, you may petition for them by filing USCIS Form I-730 Refugee and Asylee Relative Petition.
The following is a list of some supporting documents that should be included with the asylum application. The list is not all inclusive and specific details pertaining to your application should be discussed with a licensed attorney in detail. Additional documents may be necessary depending on the specific case.
The list includes but is not limited to the following items:
- Copy of Biographical Passport Page;
- Copy of U.S. Visa I.D. Page (if applicable);
- Copy of I-94 Arrival/Departure Record (if applicable);
- Copy of Birth certificate and translation to it;
- Medical reports and evaluations from Health care professionals (Affidavits, Reports)– explaining the harm the applicant has suffered due to his/her activities;
- Affidavits, Reports, pictures – establishing that applicant has suffered harm or showing applicant`s enrolment in different activities;
- Police reports – indicating applicant’s involvement;
- Government established documents – establishing the applicant`s ethnicity, religion, nationality;
- Proof of applicant`s party or group membership or affiliations;
- Very DETAILED affidavit from the applicant explaining the following:
- How the incidents have started;
- Date and place of each incident;
- Detailed story of each incident;
- Who was involved, how many people;
- Consequences of the incident
- Affidavits from close friends, family members:
- Who can demonstrate applicant`s enrollment in activities;
- Who have witnessed an event;
- Who can confirm and explain how applicant has suffered by being involved in different incidents;
- Proof of Attempts to Obtain Documents – if applicant has tried but failed to obtain documentation, those failed attempts could be submitted as evidence that the documentation is not available;
Withholding of Removal 241(b)(3)
When granted, withholding of removal is a safeguard against deportation for persons fearing that their life or freedom will likely be threatened in their country of nationality or habitual residence. To qualify, the applicant must prove that their life or freedom has been or will more than likely be threatened on the basis of at least one of the five protected grounds (race, religion, nationality, membership in a particular social group, or political opinion). Withholding of removal allows an applicant to be removed to a third country where their life or freedom will no longer be threatened. Unlike asylum, withholding of removal does not allow the applicant or their derivative spouse or children to seek adjustment of status to permanent residence, and does not extend to derivative spouses or children. Applicants who are not eligible for asylum under section 208 of the INA or withholding of removal under section 241(b)(3) may be considered for withholding of removal under the convention against torture by an immigration judge or the Board of Immigration Appeals (BIA).
If you have applied for asylum, the immigration judge will first determine whether you are eligible for asylum under section 208 of the INA and for withholding of removal under section 241(b)(3) of the INA. If you are not eligible for either asylum under section 208 of the INA or withholding of removal under section 241(b)(3) of the INA, the immigration judge will determine whether the Convention Against Torture prohibits your removal to a country where you fear torture.
Withholding of Removal Convention Against Torture
In order to qualify for withholding of removal under the convention against torture, the applicant must demonstrate that if removed they would likely be tortured in their country of nationality or habitual residence. The United States may remove the recipient to a third country where they will not be subject to fear of torture. Only an immigration judge or the Board of Immigration Appeals (BIA) may grant a withholding of removal request based on the convention against torture.
What is Torture?
Article 1 of the Convention Against Torture defines torture as:
“any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”
Torture is characterized by extreme, cruel, and inhuman treatment performed with the intention to cause ‘severe’ physical and/or mental pain and suffering to punish, intimidate, coerce, discriminate the subject or obtain a confession. Withholding of removal under the convention against torture does not allow the recipient or their derivative spouse or children to seek adjustment of status to permanent residence. This status also does not extend to derivative spouses or children.
If you are found ineligible for withholding of removal under the convention against torture you may be eligible to receive deferred removal under section 8 CFR 208.17(a) and 1208.17(a) of the INA. Recipients of deferred removal may not seek adjustment of status to permanent residence.
Traveling while Asylum is Pending
An asylum applicant may not travel while their asylum application is pending, unless they have received a valid advance parole document from CIS. If an asylum applicant travels without permission, their case will be considered abandoned.
You may not seek employment unless you have received an employment authorization card from CIS. You may apply for employment authorization by filing USCIS Form I-765 Application for Employment Authorization only if your asylum application has been pending with USCIS or immigration court for at least 150 days. Delays caused by the applicant or immigration court do not count toward the asylum clock. To check the status of your asylum clock you should contact the office with jurisdiction over your case (CIS or immigration court). The EAD card will not be issued until at least 180 days have lapsed since filing the asylum application. There is no filing fee for an initial I-765 Application for Employment Authorization. Renewal EADs are subject to a fee.
For frequently asked questions about asylum please click here.