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Applying for Protection: Asylum vs. Withholding of Removal

For those individuals seeking safe harbor within the U.S. after fleeing from their home countries due to persecution or harm, the ideal choice is for them to apply for asylum. However, the asylum program has specific requirements to qualify and be able to apply for it.

Those that do not qualify for asylum, could possibly still qualify for withholding of removal and it serves as a different legal avenue that can allow applicants to remain in the U.S. longer.

This article will serve as a comprehensive guide, exploring the distinctions between the asylum application process vs. withholding of removal.

What is Asylum?

Asylum is a humanitarian form of protection granted to individuals who are already in the United States or those who enter at a U.S. port of entry because of being forced to escape their country of origin due to several reasons including persecution, armed conflict, war, gang violence, extreme poverty, etc.

An asylee is sometimes confused with a “refugee”. A refugee is a person outside his or her country of nationality who is unable or unwilling to return to his or her country of nationality because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. An asylee is a person who meets the definition of refugee and is already present in the United States or is seeking admission at a port of entry.

Everyone has the right to seek asylum, no matter who they are, where they came from, or when they chose to flee their home country. The right to seek asylum is outlined in the 1951 Refugee Convention and its 1967 amendment – which lists the protected rights of asylum seekers and refugees. One of the most important protections established by the Convention is the right for refugees and asylum seekers to be protected from forced returns to a country where they will face serious threats to their life or freedom. This protection gives asylum seekers the right to seek asylum without fear of being returned to their home country, even if their refugee status has not been determined yet. Essentially all countries, not just the U.S., are accountable for protection asylum seekers and must accept them when they arrive at their respective ports of entry.

Once a refugee is granted asylum protection within the U.S., they are allowed to apply for certain benefits such as receiving a social security number and employment authorization document. In addition, they are allowed to petition and apply for immediate family members to join them in the U.S. In the future, that individual can also apply for their U.S. permanent residence under asylum program, provided they meet the eligibility requirements.

Purpose and Different Types of Asylum Cases

The key purpose of granting asylum is to provide sanctuary to individuals who have a substantiated fear of persecution due to specific reasons, affording them the opportunity to live and work in the United States safely.

There are two ways in which a person may apply for asylum in the U.S.: affirmatively and defensively. In 2022, there was a third way that was created, the Asylum Processing Rule, that is for individuals arriving from the border, which is a form of expedited asylum processing.

Affirmative Asylum is for those who are not in removal proceedings may apply for asylum through U.S. Citizenship and Immigration Services (USCIS). If eventually USCIS does not grant the asylum application, and the applicant does not hold any other lawful immigration status, they are then referred to the immigration court for removal proceedings, where they can renew their request for asylum through defensive process and appear before an immigration judge.

Defensive Asylum is for those in removal proceedings who may apply for asylum by filing an application with an immigration judge.

Regardless of the way one applies for asylum, all three ways require that you are physically present in the U.S. or are seeking for asylum at a port of entry before the asylum process can be filed.

Also, the asylum applicant must prove they meet the definition of refugee – which means provide evidence demonstrating either that they have suffered persecution on account of a protected ground in the past, and/or that they have well-founded fear of future persecution in their home country.

Another requirement is that the asylum applicant must apply for asylum within one year of their most recent arrival in the U.S.

Benefits and limitations of Asylum

The granting of asylum carries with it considerable benefits that afford asylees the opportunity to remain in the U.S. under legal status and to recover from the trauma of past persecution. These advantages include eligibility for work authorization, which can greatly assist in the economic and social integration of asylees. Among other benefits granted to asylees includes financial or medical assistance, employment preparation and job placement, etc. Additionally, asylees are entitled to petition for their spouse and unmarried children under the age of 21 to join them in the United States, and after one year, they and their eligible family members can apply for permanent residency.

Nonetheless, there are certain factors that can prevent an individual from applying for asylum. Individuals with specific criminal convictions, those who pose a threat to U.S. security, or those who have engaged in the persecution of others may find themselves ineligible for asylum. It is important for asylum seekers to navigate these limitations carefully and to seek legal counsel to understand how they might impact their ability to file for asylum.

What is Withholding of Removal?

Withholding of removal is a crucial protective measure within the United States’ immigration court system. It serves as a safeguard for individuals who would face serious threats to their life or freedom if deported to their country of origin based on race, religion, nationality, political opinion, or membership in a particular social group.

Unlike asylum, which offers a path to permanent residency and citizenship, withholding of removal is a more limited form of relief. It does not provide a direct route to permanent immigration status. It instead prevents the U.S. government from carrying out removal of the individual to a country where the individual has a high probability of facing persecution. This means that this legal remedy is only available for those in removal proceedings in immigration court.

One of the distinctive features of withholding of removal is its mandatory nature. If an immigration judge determines that an individual meets the criteria, the judge is required to grant withholding of removal. This means that the individual who is granted withholding of removal may never leave the U.S. without the judge executing a formal removal order. Notably, to be eligible for withholding of removal does not consider whether the individual filed within one year of arrival or is firmly resettled in another country—requirements which are relevant to being eligible for asylum.

To be considered for this protection, applicants need to overcome a demanding evidentiary threshold. They must convincingly demonstrate a greater-than-50-percent likelihood that they would be persecuted upon return to their home country due to one of the protected grounds. This higher standard differentiates withholding of removal from asylum and reflects its status as a form of relief that is available even when asylum may not be.

Withholding of removal, an alternative to asylum, warrants a higher degree of proof from the applicant. To qualify for this form of relief, individuals must convince an immigration judge in court —not an USCIS asylum officer—that there is a “more likely than not” probability of facing persecution in their homeland on account of race, religion, nationality, membership in a particular social group, or political opinion.

Purpose and eligibility requirements

The essential purpose of withholding of removal is to provide protection from persecution for people who might not qualify for asylum—perhaps due to missing the one-year filing deadline or other reasons—but still demonstrate a compelling danger if returned to their country of origin. While the eligibility threshold for asylum is based on a well-founded fear of persecution, withholding of removal necessitates a higher standard of proof. Applicants must show that persecution is more likely than not to occur, which equates to a probability of more than fifty percent. This protection does, however, come with certain limitations: it does not confer the right to apply for permanent residence, nor does it grant the individual complete security, as individuals with certain criminal backgrounds or who pose a danger to the community could be ineligible.

Moreover, withholding of removal is a difficult protection to win.

Understanding the Affirmative Asylum Application Process

The affirmative asylum application process starts when an individual, physically present in the U.S., files Form I-589, Application for Asylum and for Withholding of Removal, with USCIS, within one year of their arrival, unless extraordinary circumstances excuse the delay. Upon submission, affirmative asylum applicants will go through a series of steps, including receiving notice of their application’s acceptance, undergoing security and background checks, and attending an interview with an asylum officer.

During this critical interview, the applicant must convincingly assert a credible fear of persecution based on characteristics such as race, religion, nationality, political opinion, or membership in a particular social group. If the asylum claim is denied affirmatively, the applicant will then receive a Notice to Appear (NTA) before an immigration court where they can present their case defensively through the Executive Office for Immigration Review (EOIR).

USCIS aims to adjudicate affirmative asylum applications within 180 days of filing, but various factors, including but not limited to the applicant’s ability to submit sufficient and convincing evidence, as well as USCIS’ own processing delay can affect this timeline.

Overview of the application process for withholding of removal

When it comes to withholding removal, an applicant must demonstrate that there is a clear probability—specifically, a greater than 50 percent likelihood—of persecution if returned to their country of origin. This application is often made concurrently with the asylum application using the same Form I-589.

However, a key difference is that while an USCIS asylum officer can grant asylum, the authority to grant withholding of removal resides exclusively with immigration judges within immigration courts. As such, this form of protection can only be sought defensively in removal proceedings. If the higher legal threshold for withholding of removal is satisfied, the immigrant judge is mandated to grant it, regardless of other factors that could otherwise affect the eligibility for asylum.

Differences in documentation and evidence required.

While Form I-589 is the universal immigration form used to apply for both asylum and withholding of removal, the evidentiary burdens differ. Asylum seekers must collect compelling evidence of past or a well-founded fear of future persecution, whereas those seeking withholding of removal must present even more convincing evidence of a likelihood of persecution.

Additionally, applicants for the Convention Against Torture (CAT)—another form of protection—must provide proof that torture is more probable than not these they return home, which may include comprehensive documentation of the country conditions and personal testimonials.

Role of the USCIS asylum officer in the affirmative asylum application process

USCIS Asylum officers are tasked with conducting interviews to clarify the substance of the applicant’s fears and the persecution they may have experienced or are likely to experience. The interviews are critical parts of the asylum process where applicants relay their experiences in detail, often aided by interpreters and are permitted to have their attorneys present.

After the interview, applicants will be asked to return to the asylum office on a specified date to receive the decision on their asylum application. This personal interaction with the asylum officer is pivotal in both setting the narrative of the applicant’s case and serving as the foundation for decisions made on the status of their asylum claim.

Role of the immigration judge in the defensive application process

When an affirmative asylum application is not granted, or when individuals are placed into removal proceedings for other reasons, an immigration judge becomes central to their quest for humanitarian protection. Immigration judges have the authority to reject or deny applications for asylum or withholding of removal if they determine that the applicant has not established a prima facie case for relief.

Those facing denial are provided at least ten days’ notice before entering a removal order, granting a window for any response or additional filings to be made. In certain cases, a full hearing may not be conducted if the immigration judge concludes that the provided evidence does not establish a sufficient claim for protection under U.S. law.

An important note is that, unlike in criminal court, the U.S. government does not provide legal representation in immigration court. Thus, while applicants can seek legal counsel, they are not entitled to a government-appointed attorney. This emphasizes the importance of accessing legal aid through other means for those unable to afford it such as seeking local pro-bono immigration firms or programs.

Credible Fear and Persecution Factors

The term “credible fear” carries significant weight in asylum and withholding of removal cases within the U.S. immigration system. This concept applies to the evaluation process whereby those asserting a need for refuge are assessed for the genuineness and reasonability of their fear of persecution. In Fiscal Year 2019 alone, the U.S. saw an overwhelming number of individuals—over 213,000—applying for asylum, highlighting a rising need for protection. A notable increase in those found to have a credible fear of persecution from 10,838 in FY 2012 to 75,252 is indicative of the escalating global issues prompting these applications. In practice, a credible fear interview conducted at the border is crucial, as those who successfully demonstrate a credible fear are directed to normal removal proceedings where asylum claims can be more thoroughly pursued.

Definition of credible fear

At the heart of the asylum process is the definition of “credible fear.” If an individual can show, usually in an interview with an USCIS asylum officer, that they have been persecuted or have a genuine and realistic fear of harm based on protected grounds like race, religion, nationality, member of a particular social group, or political opinion, they will be transferred to file for asylum with the immigration court. Those with a prior order of deportation, however, face a demanding challenge—they must prove a reasonable fear of persecution leading to withholding-only removal proceedings, where they are eligible to apply for withholding of removal, but not asylum. Despite the recent surge in asylum seekers, those that are granted withholding of removal only, remain relatively scarce.

Importance of proving credible fear in any type of asylum case

The importance of proving credible fear in asylum cases cannot be overstated. This demonstration is a fundamental factor as it dictates an individual’s eligibility for asylum protection in the U.S. Consequently, USCIS holds considerable responsibility, conducting interviews diligently to verify credible fear claims. An immigration judge will also want the individual to file sufficient evidence to prove their asylum claim.

Fear of persecution as a basis for withholding of removal

As already mentioned, withholding of removal is a bar within the immigration court system that prevents an immigration judge from sending someone to a country where they would likely face persecution or torture. However, the standard of proof for withholding of removal necessitates that the applicant convincingly demonstrates that it is more likely than not they will encounter persecution for one of the protected grounds upon returning to their country of origin. This level of proof is notably higher than that required for asylum and is adjudicated by an Immigration Judge in removal proceedings.

Overcoming the one-year filing deadline for asylum applications

One key requirement in the asylum application process is the one-year filing deadline. Asylum seekers are generally required to submit their Form I-589 within one year of their arrival in the U.S. However, there are critical exceptions to this rule that recognize the complexity of everyone’s situation. Consideration for extraordinary circumstances such as serious illness or mental or physical disability and changed circumstances which materially affect eligibility for asylum—like changes in the home country’s conditions or alterations in applicable U.S. law—can allow an individual to overcome this one-year filing deadline. It’s essential for those seeking asylum to understand these exceptions and, if applicable, present compelling arguments and supporting evidence to account for the delay and still be allowed to file for asylum.

Options for Obtaining Permanent Residency or Lawful Immigration Status

For those granted asylum, there is the subsequent option to pursue permanent residency. Asylees are eligible to apply for a green card if they meet the following requirements. First, they must have been granted asylum by USCIS or by an immigration judge. Second, they are properly file Form I-485, Application to Register Permanent Residence or Adjust Status. Third, they must be physically present in the U.S. when they file the Form I-485. Fourth, they must have been present in the U.S. for at least one year after they were granted asylum. Fifth, you qualify to file for adjustment of status within the U.S. or eligible for a waiver of inadmissibility. And lastly, they merit a favorable exercise of discretion – which means that their case is worthy of favorable consideration of being approved.

Derivatives, (includes spouses and children) of principal asylum holder cam also apply for their green card at same time of the principal applicant.

Challenges faced by asylum seekers in the application process

The journey to secure asylum begins with an difficult application process, where asylum seekers are compelled to establish credible fear for their safety upon removal from the U.S. This involves presenting convincing evidence of persecution in the face of stringent scrutiny from adjudicators. For affirmative asylum applicants who face denial, the process does not end there; they have the option to transfer their case as a defensive process through the Executive Office for Immigration Review (EOIR), providing them with another opportunity to meet the eligibility for asylum.

Those apprehended without proper documentation and identified as persecution victims are immediately placed in removal proceedings where they can apply for asylum before an immigration judge. Furthermore, asylum seekers in the U.S. without valid immigration status can face compounding challenges when applying for employment authorization, which follows a set of waiting periods and eligibility criteria crucial to maintaining livelihoods during their application period.

Future implications and changes in immigration policies

The restrictive immigration policy landscape introduced by the Trump administration has led to substantial declines in number of individuals granted asylum and withholding of removal. Key policy shifts have steepened the path to winning such relief, making it more difficult to prove the asylum eligibility requirements.

Importance of Having Assistance of an Immigration Lawyer for Asylum

Regardless of which form of relief or type of asylum case you apply for, one thing is certain, the importance of having an immigration lawyer assist you in the filing and preparation of the case. Asylum lawyers carry out crucial tasks during the process including but not limited to, conducting extensive research, collecting, and documenting evidence, preparing legal briefs, and court appearances if the case is with an immigration judge. Most importantly, the lawyer will guide you through the process, and be there for you every step of the way.

Gondim Law Corp. has experienced lawyers that stay updated with changes in immigration laws and policies, ensuring that our strategies are tailored to meet your individual needs. Our commitment to you is to ensure that you are fully informed and fully prepared for your asylum case.

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