The following are questions we are often asked by clients as they contemplate seeking asylum, withholding of removal, and/or protection under the Convention against Torture.
What is the difference between an affirmative asylum application and a defensive asylum application?
An affirmative asylum application is one that is filed by an applicant who is present in the United States but has not been placed in removal (deportation) proceedings. A defensive asylum application applies to persons in removal proceedings, who are requesting asylum from an immigration judge.
Affirmative asylum applications are processed and decided by U.S. Citizenship and Immigration Services (USCIS)’ Asylum Office. Following the filing of your asylum application, the Asylum Office will interview and determine if you are eligible for relief. If the Asylum Office does not approve your application, your case will be referred to the immigration court for removal proceedings, where you will have the opportunity to renew your asylum claim before the immigration judge. The court will set a merits hearing, where you will testify about your fear of returning home, and where you will have the opportunity to call witnesses. If approved, you are considered an “asylee” and can seek lawful permanent U.S. resident (“green card”) status after one year and, ultimately, U.S. citizenship.
How are Asylum, Withholding of Removal, and protection under the Convention Against Torture (“CAT”) different?
In addition to asylum, there are two additional forms of relief available to persons who fear harm in their country of origin: withholding of removal and protection under the United States Convention Against Torture (“CAT”). You may seek withholding of removal and CAT protection at the same time you file for asylum.
Withholding of removal and protection under CAT are available to persons who did not apply for asylum within the one-year filing deadline, as well as to those who are barred from asylum due to a previous deportation order, previous firm resettlement in a third country, or based on certain criminal convictions.
One very important distinction is that the standard for proving a withholding of removal or CAT claim is much more stringent than the standard applied to an asylum claim. However, if this higher standard is met, approval is mandatory. Unlike with asylum, asylum officers and immigration judges cannot deny eligible withholding of removal or CAT applications on discretionary grounds.
For relief under CAT, the feared persecution need not be on account of one of the five protected grounds (political opinion, race, religion, nationality, or membership in a particular social group). Rather, you must prove that, should you be returned to your country of origin, there is at least a 51% chance that your home country’s government will torture or kill you, or that the government will consent to, or ignore, another person’s attempt to torture or kill you.
Unlike asylum, which entitles a successful case to later seek permanent resident (“green card”) status based on an approved asylum application, a withholding or CAT grant does not automatically entitle the applicant to file for a green card.
Also, a person granted withholding of removal or relief under CAT can still be sent to a third country where no threat of persecution exists.
Another difference is that while your spouse and minor children can receive asylum protection automatically if you qualify for it, there are no derivative benefits for your spouse or children with withholding or CAT relief.
What are the Credible Fear and Reasonable Fear Reviews?
Under U.S. immigration law, foreign nationals who arrive at the border or a U.S. Port of Entry without proper entry documents, as well as those who enter illegally and are apprehended near the border shortly after arrival, are detained and placed in expedited removal proceedings. Expedited removal allows persons to be removed without ever seeing an immigration judge.
During the expedited removal process, persons who express a fear of persecution or torture are referred to a credible fear screening, which consists of an interview with a USCIS asylum officer. Persons previously removed from the United States who express a fear of persecution or torture are referred to a reasonable fear screening with a USCIS asylum officer.
When the USCIS asylum officer finds that the person does not have a credible fear or reasonable fear of persecution or torture, the person can request that an immigration judge review that finding.
I submitted an affirmative asylum application last week with USCIS, how soon will I get my interview?
In the past, persons would arrive in the United States, file for asylum, file for their work permit after five months, obtain employment authorization, and wait several years before being called to the interview on their asylum application. This is no longer the case.
As of January 2018, USCIS’ Asylum Division implemented a new set of priorities for the scheduling of interviews on affirmative asylum applications. High on this set of priorities are persons whose applications have been pending 21 days or less since filing. The Asylum Office is setting the newer filings for interview first, working backwards towards the cases that have been pending for months or even years.
I am in the United States illegally, may I still apply for asylum?
Yes, you may apply for asylum even if you are out of status or you entered this country illegally. If you are not applying within one (1) year of your most recent arrival in the United States, you will need to demonstrate that you qualify for an exception to the 1-year filing rule. You may also apply for withholding of removal or protection under CAT without regard to the 1-year bar. If you are present in this country illegally and choose to seek asylum, it is important that you understand that the filing of your asylum application may alert ICE to your presence in the United States and may subject to you to detention and placement in removal proceedings.
I have been convicted of a crime. Can I still apply for asylum?
It depends. Some criminal offenses, such as those considered to be “aggravated felonies,” are an absolute bar to asylum. There are other crimes that do not bar you from applying for asylum, but which might cause your application to be denied on discretionary grounds.
Even if you have been convicted of an aggravated felony, you are not barred from seeking relief under the Convention Against Torture. If your aggravated felony does not qualify as a “particularly serious crime” for withholding purposes, you are similarly not barred from seeking withholding of removal.
May I work while my asylum application is pending?
You are entitled to submit an application for an employment authorization document (work permit) after your asylum application has been pending for 150 days.
I am outside the United States but fear harm in my home country, may I still apply for asylum?
If you are outside the United States and outside your country of origin, but you fear violence, torture or other persecution in their country of origin on account of one of the five (5) protected grounds, you may seek refugee status from abroad.
I obtained my green card based on asylum, may I travel to my country of origin?
Should you, as an asylee or a permanent resident who received your green card status through asylum, voluntarily return to your country of claimed prosecution, you place yourself at risk of termination of your asylee status. If you do have to return to your home country for some reason, it is important that you take steps to minimize the likelihood that the trip will impact your status in the United States.