Asylum is one of the most difficult defenses in Immigration Court.
This is why when you go to Immigration Court alone, Immigration Judges are willing to give you a continuance of your hearing to give you time to get an attorney. In addition, you are given a list of organizations that may be able to assist you for a free or low cost. However, you are facing the risk of being removed from the United States. Therefore it is essential that you hire an Immigration Attorney experienced in Deportation Defense.
If you fear returning to your home country because of past or future persecution you may qualify for asylum. Asylum requires the filing of an I-589 form, which also provides alternate reliefs such as Withholding of Removal and Convention Against Torture. You can only apply for asylum inside the United States or a port of entry.
What is asylum?
An individual may apply for asylum if they meet the refugee definition, not statutorily barred from applying, and merits a favorable exercise of discretion (INA Section 208, 8 USC Section 1158). The requirements are for applying for asylum are as follows:
The harm feared or suffered rises to the level of persecution
The fear is based on past persecution or a well-founded fear of future persecution
Persecution was or would be on account of 1 of 5 enumerated grounds
The laws of their country are not able to protect them
Not barred from asylum protection
File for asylum within 1 year of having entered the United States.
What is persecution for Asylum?
The Immigration and Nationality Act (INA) does not have a definition for persecution, but the Board of Immigration Appeals (BIA) has provided a definition saying “a threat to the life or freedom of, or the infliction of suffering or harm upon those who differ in a way regarded as offensive.” Immigration Courts have used a general definition of persecution that doesn't necessarily include physical harm, such as depriving someone of their freedom, food, housing, employment, or other essentials of life.
What are the enumerated grounds that qualify for Asylum?
The enumerated grounds for asylum are as follows:
Membership in a particular social group
What is a Particular Social Group?
The membership in a “particular social group” is difficult to define. There are various case decisions from different parts of the country that giving different opinions as to who belongs to what particular social group. The most recent decision was Matter of W-Y-C & H-O-B, 27 I&N Dec. 189 (BIA 2018) that requires asylum applicants to clearly delineate on the record before the Immigration Judge the “particular social group” in which they claim membership. Failure to do so, the BIA would not consider a newly proposed particular social group on appeal. The particular social group is one of the most challenging areas of asylum defense.
Matter of Acosta defined a particular social group as persons sharing common immutable and or fundamental traits such as sex, color, kinship ties, or share past experiences. This was the law for many years until Matter of C-A I&N Dec. 951 (BIA 2006) came up with a more narrow test such as 1) the group shares immutable and or fundamental traits, 2) is socially distinct, and 3) is particular.
Defining your particular social group is key to winning your asylum case in Immigration Court. This is why it is essential that you have an experienced Asylum Immigration Attorney representing you. Burga Law Firm PC has been successful in representing asylum applicants in both Immigration Court and at USCIS.
Withholding of Removal
What is Withholding of Removal in immigration court
An individual may apply for withholding of removal by filing a form I-589. This is governed in INA Section 243(b)(3), 8 USC Section 1231(b)(3). Asylum is preferable but if you are not granted asylum you can apply for Withholding of Removal.
What are the benefits of Withholding of Removal?
If the individual can establish well-founded-fear of persecution then a Judge would grant the applicant to stay in the country along with the following benefits:
Live and work in the U.S. as long as the country conditions in the home country don't change
It does not enable the applicant to apply for permanent residence
May apply at any time, meaning there is no 1-year deadline to file
Has less strict criminal bars
Cannot be denied withholding as a matter of discretion if the person qualifies under the statute, and
Must prove a “reasonable probability” of persecution (more than 50%).
There are certain crimes that bar eligibility for not only withholding but also asylum. This is defined as a Particularly Serious Crime (“PSC”).
Convention Against Torture (CAT)
If you fear that you will be tortured if you return to your home country then you can be eligible for CAT. The United States implemented the international convention, which prohibits a country from sending a noncitizen to a country where he or she will be tortured.
To apply for CAT the applicant must show that it is more likely than not that he or she will be tortured upon return to the home country. 8 CFR Section 208.16(c).
Torture is severe pain, whether emotional or physical, intentionally inflicted upon a person for any of various reasons, such as to obtain information, punish, or coerce.
Burga Law Firm PC has successfully represented many individuals with their asylum claims. Lately, the new Administration has made several developments and changes in this area of law. However, Burga Law Firm PC is always up to date with changes and how to overcome them.