U.S. Immigration laws protect individuals fleeing persecution from foreign countries. It is important to understand who is protected, how they are protected, and the benefits that flow from this protection.
1. Who Is Protected?
- Refugees and asylum seekers are protected under U.S. immigration law.
- A refugee or asylee is someone who cannot or will not return to their home country due to a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion.
- An asylee seeks protection from within the United States.
- A refugee seeks protection from outside the United States.
2. Affirmative and Defensive Asylum
- Affirmative asylum applications are filed with USCIS.
- Defensive asylum applications are filed before an Immigration Judge at EOIR during removal proceedings.
3. Affirmative Application Process
- The applicant must be physically present in the U.S. or seeking entry at a port of entry.
- Filed using Form I-589 (Application for Asylum and Withholding of Removal).
- Must be filed within one year of last arrival unless exceptions apply.
- Late filings may qualify if there are changed circumstances or extraordinary circumstances.
4. Authorization to Work
- If the applicant has not been interviewed after a certain period, they may apply for an Employment Authorization Document (EAD).
- Work authorization allows employment while the asylum case is pending.
5. Travel Outside the United States
- Asylum applicants may request Advance Parole to travel.
- Leaving without Advance Parole results in abandonment of the application.
- Those out of status may face reentry difficulties even with Advance Parole.
- Approved asylees may apply for a Refugee Travel Document.
6. Asylum Interview
- Applicants are scheduled for an interview with an Asylum Officer.
- The officer evaluates credibility and supporting documentation.
7. Approval and Protection
- Approved applicants receive legal protection in the United States.
- Asylees and refugees are authorized to work based on their status.
- They may receive government assistance for resettlement.
- Refugees may petition for spouses and unmarried children under 21 within two years of approval.
8. Permanent Residency and Citizenship
- Asylees and refugees may apply for permanent residence after one year.
- After obtaining permanent residence, they may apply for naturalization (generally after four additional years).
9. Denial and Referral to Immigration Court
- If not approved, USCIS issues Form I-862 (Notice to Appear).
- The case is referred to Immigration Court for a de novo hearing.
10. Defensive Asylum Processing
- Filed when an individual is in removal proceedings.
- May occur after referral from USCIS.
- May occur after apprehension without proper documentation and a finding of credible fear.
WITHHOLDING OF REMOVAL
A foreign national in removal proceedings may be granted Withholding of Removal under US Immigration and Nationality Act (INA) or under United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”).
To be granted Withholding of Removal under the Act, the applicant must demonstrate that, if returned to their country, their life or freedom would be threatened on account of one of the protected grounds. The applicant must establish a “clear probability” of persecution and torture, meaning that it is “more likely than not” that they will be subject to persecution on account of a protected ground if returned to the country from which they seek withholding of removal.
According to CAT and its implementing regulations, no person may be removed to a country where it is “more likely than not” that such a person will be subject to torture. “Torture” is defined, in part, as the intentional infliction of severe pain or suffering by, or at the instigation of, or with the consent or acquiescence of a public official.