Law Offices of Elise Schwarz

The United States of America offers three principal grounds of relief to those who have been persecuted, or have a reasonable fear of persecution, in their home countries. These are, asylum, withholding of removal, and relief under the Convention Against Torture.

Asylum

Within one year of an applicant’s last entry into the United States of America, he or she must file an application for asylum, demonstrating an unwillingness or an inability to return to his or her own 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.

Therefore, the burden is on the applicant to prove

1. A reasonable possibility s/he will be persecuted
   1. Prove the applicant has a well-founded fear by showing that a reasonable person in his or her circumstances would fear persecution in that situation.
   2. Note that “fear” may be well founded “even if there is only a slight, though discernible, chance of persecution”.
2. The persecution must arise on account of the applicant’s race, religion, nationality, membership in a particular social group or political opinion

A grant of asylum is discretionary: adverse factors that have resulted in a denial of asylum include criminal convictions, and failure to attend an asylum hearing in another country. However, positive factors can be introduced to persuade a favorable grant of discretion.

A grant of asylum brings comprehensive benefits. The asylee can remain in the United States legally and obtain employment authorization. These same benefits can be passed along to the asylee’s spouse and children. After one year, the asylee can apply to become a legal permanent resident, and five years thereafter may apply for citizenship.

Withholding of Removal

This relief prohibits the removal of an individual to a country where his or her life or freedom would be threatened because of the person’s race, religion, nationality, membership in a particular social group, or political opinion.

The individual must demonstrate that it is “probable” that he or she will face persecution on account of a protected ground if returned to his or her home country.

The standard is therefore higher than that for asylum: an applicant for withholding relief must show a clear probability or persecution or that it is more likely than not that s/he would be persecuted if returned to his home country. However, if the elements are satisfied, relief here is mandatory, rather than discretionary (as with asylum). Caveat: if there is a third country which is willing to accept this individual and in which s/he will not be persecuted, the United States can remove the individual to that country (e.g. the individual has dual citizenship)

Convention Against Torture Relief (also known as nonrefoulement)

Must demonstrate that it is “more likely than not” that the alien will be subjected to torture, meaning infliction of extreme physical or mental pain by a government official.

The six basic elements of torture are:

1. an intentional act;
2. infliction of severe pain or suffering;
3. under the custody or control of the offender;
4. for a broad array of wrongful purposes;
5. by or sanctioned by a public official;
6. not arising out of lawful sanctions.

This relief is only available to those individuals who are subject to removal procedures: unlike asylum, an individual cannot apply affirmatively for this relief and it cannot be granted at the administrative level: only an immigration judge, the Board of Immigration Appeals, or a Federal court can grant relief under the Convention Against Torture.

The standard is higher than for asylum or withholding: the individual must fear actual torture, rather than persecution.

If the individual can establish “substantial grounds for believing he or she would be in danger of being subjected to torture”, there are two distinct forms of relief available under CAT:

1. Withholding of Removal under CAT:

2. 1. This grants benefits similar to regular withholding of removal of relief, however, it also imposes the same mandatory bars to relief.

2. Deferral of removal under CAT:

There are no mandatory bars to relief here, however a grant of deferral can be more easily terminated than any other form of relief. In addition, a person granted deferral may be held in detention and is not entitled to employment authorization. However, the U.S. Immigration and Customs Enforcement (ICE) can release the individual, and the U.S. Citizenship and Immigration Services (USCIS) can issue employment authorization.

Relief under the Convention Against Torture does not allow the individual to ever apply for adjustment of status to permanent residency, and it does not confer status on his or her spouse or children. However, it is available where there are bars to withholding and asylum, e.g. where the individual has a criminal conviction or other bar. It is also available where the individual is unable to establish that the persecution is on account of one of the five protected grounds.

Bars to Relief

Bars to Asylum

1. Prior asylum denial;
2. Application beyond the one year filing deadline;
3. Firm resettlement;
4. Existence of a safe third country

Bars to Withholding of Removal Relief

1. Participation in Nazi persecution;
2. Participation in Genocide.

Mandatory Bars to both Asylum and Withholding of Removal Relief

1. Particularly serious crimes;
2. Aggravated felonies;
3. Certain non-aggravated felonies;
4. Serious non-political crimes;
5. Participation in persecution of others;
6. Danger to security of the United States;
7. Terrorism

This entry was posted on Monday, January 14th, 2008 at 10:57 pm and is filed under Relief From Persecution. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.