What is asylum?
Asylum is the legal protection available to a person who has fled their native country to escape persecution under five special circumstances: race, religion, nationality, political opinion, and membership in a particular social group. Asylum is available when someone is present in the United States. Someone who is still outside the United States would apply for refugee status.
Although many countries have committed to the Convention Against Torture and other treaties that will not return a foreign national to their home country if they are likely to be tortured or killed, obtaining legal asylum status is a long, difficult process. Asylum is only available to those who can show they have been or have a reasonable fear of being persecuted if they return to their home country because of one or more of the five special circumstances listed above.
Affirmative asylum, defensive asylum, and withholding of removal
There are three avenues for those who have suffered persecution to remain in the United States. Affirmative asylum is the best avenue to start with. However, the I-589 application must be submitted within one year of entry into the United States, with very few exceptions. If the applicant is ineligible for immigration, already in removal proceedings, or misses the deadline, this option will not be available, and defensive asylum will be the next best option. Affirmative asylum is preferable when available because it is non-adversarial. The interview is with an asylum officer rather than a hearing before a judge. Furthermore, if affirmative asylum is unsuccessful, an applicant can still go through the defensive asylum process, essentially receiving a second opportunity to establish grounds for asylum. Once granted asylum, an individual can work in the United States, obtain permanent resident status, and eventually obtain citizenship. However, obtaining asylum is within the discretion of the judge; applicants are roughly three times as likely to obtain asylum with an attorney who is familiar with presenting the necessary proof and arguments than if they proceed on their own.
Withholding of Removal
If the requirements for asylum cannot be met, sometimes an individual can stay in the United States under a withholding of removal. This means that even though the applicant is not eligible for resident status, they will not be returned to their home country. Although the burden to show the likelihood of harm is higher, once the burden is met, the result is mandatory—the individual cannot be removed. However, the relief is temporary. The applicant does not have any avenue to citizenship, cannot seek relief for family members, and can be removed to another country of residence where they are less likely to be persecuted. Withholding of Removal is generally a last resort and asked for as alternative when asylum is desired.
The attorneys at Springer & Lyle can help you navigate the challenges of the asylum process and ensure that you have the best possible chance of obtaining legal status. Please call if you have any questions or if you would like to begin the process.