Refugee protection is an important pillar of US immigration law. If you have a well-founded fear of returning to your home country, you may want to speak to a DC asylum lawyer to see if you are eligible for legal status based on this fear.
There are three possible ways an individual can apply for immigration status based on a fear of returning to their home country:
- Withholding of removal
- Protection under the United Nations Convention Against Torture (CAT)
Our immigration attorneys have extensive experience applying for all three forms of relief.
An annual cap for the number of people who can be granted asylum or refugee status does not exist; however, only 10,000 individuals can apply for legal permanent residence (LPR) status based on their already-approved asylum application in a given year. People granted asylum must reside in the US in asylum status for at least one year before they may apply for their green cards.
To be eligible for asylum in the United States, you must:
- Apply for asylum at any port-of-entry including border crossing, airport, or seaport.
- Submit an application for asylum to either the Executive Office of Immigration Review (EOIR), or if you are not in removal proceedings, with the United States Citizenship and Immigration Service (USCIS) within one year of your arrival to the United States.
- Demonstrate that you are a “refugee” as defined by U.S. immigration law by showing that you have suffered past persecution or have a well-founded fear of future persecution by the government of your home country or an entity that the government can or will not control.
- Demonstrate that the persecution you would face in your home country is based on your religion, race, nationality, political opinion, or membership in a particular social group.
In some circumstances, you may apply for asylum even if you have been present in the United States for more than one year. This is possible if the conditions in your home country have materially changed since you entered the US, or if your own personal circumstances have changed such that the threat you will face if you are forced to return to your home country is materially affected. A DC asylum lawyer can help explain how this immigration application works and whether you are eligible.
In addition, you may be able to successfully apply for asylum past the one-year deadline if you can prove that extraordinary circumstances prevented you from submitting the application within one year of your arrival. In these cases, the application must be submitted within a “reasonable time” considering the circumstances.
Affirmative Asylum Application
A person can apply for asylum through an affirmative application and defensive application. An “affirmative application” is when you submit your application directly to USCIS without being placed in removal proceedings. This route involves preparing and submitting the required USCIS forms and then participating in an interview at your local USCIS office. Your eligibility will be based on your written application and on the information you provide during your interview.
Defensive Asylum Application
The second way to apply for asylum is through a “defensive application.” This route is available to people who have been placed in removal proceedings and who are “defending” themselves against being deported from the US. Defensive asylum applications require the same USCIS forms as affirmative asylum applications; however, the application is submitted directly to an immigration court judge. After the judge has accepted your written asylum application, they will set a time for an individual hearing. At your hearing, you and your DC asylum attorney will prepare to defend your claim for asylum using documentary evidence, witnesses, and your own testimony. The time and preparation involved for your hearing will be similar to a trial.
In many cases, an affirmative asylum application may become a defensive application. This happens when an individual who is not in removal proceedings submits their initial application for asylum to the local USCIS office and undergoes an interview that results in a denied application. If you are in the United States illegally when USCIS denies your case, they will refer you to the immigration court and you will be subject to removal proceedings. At this point, you will re-submit your asylum application and begin a defensive application process in front of a judge.
It is important to remember that your criminal record in the United States will come into play when you apply for asylum. Individuals convicted of an aggravated felony or other “particularly serious crimes” are not eligible for asylum. Determining whether an offense is an aggravated felony or particularly serious crime may involve a complicated legal analysis and generally the assistance of an experienced DC asylum lawyer.
Withholding of Removal
Withholding of Removal, or “withholding,” is an immigration benefit that prohibits the United States government from returning an immigrant to their home country if their life or freedom would be threatened due to their religion, race, nationality, political opinion, or membership in a particular social group. The benefits granted to a withholding applicant are inferior to those granted to an asylum applicant because withholding applicants are not eligible to become legal permanent residents and their status can more easily be revoked.
However, it is an important option for individuals who are prohibited from receiving asylum status for reasons such as conviction of an aggravated felony, missing the one-year filing deadline for asylum applications, or not being eligible for an enumerated exceptions.
Unlike asylum, withholding of removal can only be granted by an immigration judge, so it is only available as a defensive application in immigration court. Withholding also differs from asylum in that the legal standard is more difficult to satisfy. While asylum requires the applicant to prove that they have a “well-founded fear of persecution,” withholding of removal requires the individual to demonstrate that it would be “more likely than not” that they will face persecution if returned to their home country.
Once granted, withholding can only be terminated if an individual’s case is reopened and government attorneys can establish to an immigration judge that they are no longer likely to be tortured if returned to the home country.
Protection Under the Convention Against Torture (UNCAT)
Protection under the Convention Against Torture(CAT) is a benefit that arises from the United Nations that both prohibits governments from torturing their citizens and prohibits governments from deporting individuals to countries where the deportee would more likely than not be subject to torture.
CAT is used as a last resort for individuals who would likely be subject to torture, but who are ineligible for withholding of removal because they have been involved in the persecution of others in the past or have other serious criminal convictions that bar them from asylum or withholding.
CAT is a more tenuous immigration status because it is easier to terminate than withholding or asylum. Also, unlike applicants for withholding, individuals may be detained by Department of Homeland Security even after being granted CAT if they are deemed to be a threat to the community.
To be eligible for Deferral of Removal under the Convention Against Torture, an individual must demonstrate to the immigration judge that it is “more likely than not” that they will be tortured if they return to their home country. They also must prove that this torture will be carried out “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”
The United States government defines torture in 8 C.F.R. 1208.18(a)(1) as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for the purpose of obtaining information or a confession, punishing them for an act they or a third person had committed, or intimidating or coercing them or a third person, or for any reason based on discrimination of any kind…”
Unlike asylum and withholding, applicants for CAT need not demonstrate that they would be tortured on account of a particular membership in a group, belief or other immutable characteristic.
Contact an Experienced DC Asylum Attorney
Asylum and refugee law is among the most rapidly evolving and nuanced areas of immigration law. A DC asylum lawyer has knowledge of the latest asylum-related court decisions in your region, as well as the most up-to-date view of the United States regarding the conditions in your home country, which can be used to bolster your application.
In many cases, collecting evidence of past persecution or fear of future persecution to submit to the immigration court is the most difficult part of the process. An experienced DC asylum attorney can assist you in collecting this evidence and help you determine the best sources for this evidence. This is especially important when the applicant has been in the United States for many years and/or may not have many ties left in their home country.
If you fear returning to your home country because you fear persecution,contact our experienced DC asylum lawyers to discuss your case.