There are several forms of relief available once you have
been moved into the immigration and deportation proceedings. These forms
of relief include: Asylum, Withholding of Removal, and Convention Against
Torture (CAT). The Law Offices of Vincent S. Wong are happy to discuss
your options with you, but the below information can be a quick guide to the
If you are already in the United States or one of its territories or possessions and you are afraid of returning to your home country, you may qualify for asylum in the United States.
The United States grants asylum to aliens who can prove that they are afraid to return to their home countries because they have a well-founded fear of persecution, either through showing that they suffered past persecution or that they are likely to suffer persecution if they return home.
Once an alien receives asylum in the United States, they may apply for a green
card and eventually citizenship, which makes Asylum the most desirable method
to remain in the United States.
The first step in the asylum process is to have an initial hearing with the Asylum Officer, who has the power to grant asylum immediately. However, Asylum Officers are heavily influenced not only by your testimony but the official government reports on the conditions in your home country. In addition, Asylum Officers have very little discretion to grant asylum if it is not filed within one year of last arrival in the United States.
If your claim is denied, you are automatically referred to an Immigration Judge where you will be given a formal trial to prove your merits. Immigration Judges, unlike Asylum Officers, have considerable discretion to grant asylum even if the application was not filed within one year of last arrival in the United States.
Grounds for Asylum
In order to qualify for Asylum, you must show that you suffered persecution or will suffer persecution by the government of your home country or individuals that the your government is unable or willing to control for the following reasons:
The One Year Issue
An asylum seeker must apply an application for asylum within one year of arriving in the United States. Failure to do so will greatly increase the difficulty of your asylum claim. However, there are exceptions to the one year rule.
Persecution Must be Government Sponsored
The government must be the one that is persecuting you or that will persecute you when you return home for one of the five enumerated grounds that are listed above; political opinion, religion, race, nationality, and membership in a particular social group.
Either the government must be the persecutor or it must be groups that the government is unable or unwilling to control must be the persecutors. Persecution for personal reasons does not meet the requirements of granting asylum.
WITHHOLDING OF REMOVAL
Similar to asylum, a withholding application must be based on persecution on account of the above enumerated grounds; race, religion, nationality, membership in a particular social group, or political opinion. However, it is more difficult to show that an applicant qualifies for withholding of removal than asylum. This is because withholding of removal requires that an applicant show a "well-founded fear" of persecution that they will be persecuted if they return to their home country. The applicant must show that it is more likely than not that they will be persecuted.
The advantage of applying for withholding of removal is that there is no one year limit and an applicant can apply for withholding of removal at the same time as their asylum application. Withholding of removal has many of the same benefits of asylum allowing an applicant to remain in the United States and receive work authorization.
However, if you are present in the United States pursuant to withholding of
removal, you cannot travel internationally as the customs and
border patrol will not allow you to return.
CONVENTION AGAINST TORTURE
The most difficult form of relief in the immigration and deportation process is the Convention Against Torture or CAT. The applicant must show that he or she would be tortured by directly by their government or with the complicity of their government if they return home. CAT does not require the applicant to show persecution on of the above enumerated grounds; race, religion, nationality, membership in a particular social group, or political opinion.
The standard to receive CAT is that the applicant is more likely than not to face torture if they return home, which is much higher than the possible and probable standards of asylum and withholding of removal. Relief under CAT is the most difficult form of relief to demonstrate and receive, however it allows even applicants convicted of felonies in the United States to remain. Furthermore, there is no one year issue with CAT applications.
Like withholding of removal, the Convention Against Torture allows you to
remain in the United States with work authorization, however, it does not
allow you to travel internationally.
CANCELLATION OF REMOVAL
Cancellation of Removal is available to aliens in removal and deportation proceedings to ask an Immigration Judge to pardon their unlawful presence or acts that subject them to deportation and to allow them to remain in the United States as a lawful permanent resident.
There are two types of Cancellation of Removal, which all an alien that has been living lawfully in the United States for a certain amount of time a means to become a U.S. citizen:
Cancellation of Removal for Long-Term Permanent Residents requires an alien to (1) reside in the United States in a lawful immigration status for not less than the last five (5) years, (2) reside in the United States continuously for seven (7) years after having been admitted in any status, and (3) not been convicted of an aggravated felony as defined by Federal Immigration Laws (potentially different than State definitions). Cancellation of Removal will allow the Long-Term Permanent Resident to remain a lawful permanent resident and stay in the United States.
Cancellation of Removal for Long-Term Non-Permanent Residents requires an alien to be (1) physically present in the United States for a continuous period of no less than ten (10) years preceeding the request, (2) be a person of good moral character during those ten (10) years, (3) not been convicted of a criminal offense subject to deportation (as listed by the INS), and (4) removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a U.S. citizen or long-term permanent resident.
Granting of Cancellation of Removal is a discretionary form of relief, which means that the judge has no obligation to grant it even if an alien meets the above requirements.
Cancellation of Removal offers the opportunity for aliens who entered the United States without inspection to establish legal status. However, it requires an alien to enter into removal and deportation proceedings to seek that option, which makes Cancellation of Removal a highly risk endeavor.