Immigration Court and Deportation Defense

Asylum and Withholding of Removal

To qualify for asylum (INA section 101(a)(42)(A)), a foreign national or person having no nationality, must demonstrate that they are a refugee that is either unable or unwilling to return to their country of nationality or country of last habitual residence, as a result of persecution or well-founded fear of persecution on the basis of five statutorily protected grounds including: race, religion, nationality, membership in a particular social group, or political opinion. An asylum application is also considered a request for withholding of removal from the United States. Additionally, asylum seekers may seek protection from removal under the convention against torture.

Article 3 of the Convention Against Torture explicitly states that the United States may not remove an individual who would more than likely be subject to torture in their country of nationality or habitual residence.

In order to qualify for asylum, the applicant must prove that the required “nexus” (or connection) exists between their persecutor’s motive and one or more claimed grounds. Persons who have ordered, incited, assisted, or participated in the persecution of any person based on race, religion, nationality, membership in a particular social group, or political opinion will not be considered for refugee status. Additionally, persons who have committed serious offenses equivalent to aggravated felonies may not qualify for asylum. There are two different ways to obtain asylum. The first is through Affirmative Asylum Processing and the second is through Defensive Asylum Processing.

This graphic, created by Human Rights First an independent advocacy organization, illustrates the asylum and refugee resettlement process.

Refugees may apply for asylum through affirmative asylum or defensive asylum regardless of their immigration status unless they are found removable to a safe ‘third country’ based on a two-party or multi-party agreement between the United States and other countries (INA 208 (2)(A)).

Asylum seekers who have been denied asylum in the past by an immigration judge or Board of Immigration Appeals (BIA) must demonstrate that a material change in their circumstances has occurred since last filing allowing them to make a new asylum claim. A material change is a substantial alteration in circumstances which CIS will rely on when determining the merits of the asylum claim. Asylum recipients can eventually adjust their status to permanent residence. Capturing the applicant’s biometrics is a required part of the application process for both the affirmative asylum and defensive asylum processes.

Statute of Limitations

USCIS Form I-589 Application for Asylum and for Withholding of Removal must be filed within 1 year of the asylum seeker’s last arrival to the United States. Exceptions exist to overcome this requirement however the applicant will need to provide clear and convincing evidence that extraordinary circumstances prevented them from filing their application on time or that new circumstances warrant a consideration of material change. There is no filing fee for USCIS Form I-589 Application for Asylum and for Withholding of Removal.

Affirmative Asylum Overview

Asylum seekers residing lawfully in the United States or seeking lawful entry to the United States through a port of entry, can apply for asylum through the affirmative asylum process. The affirmative asylum process generally culminates in an interview conducted by an Asylum Officer, who will determine whether the applicant will be granted asylum. Exceptions to the interview requirement exist for certain alien crew members, stowaways, visa waiver program applicants, visa waiver overstays, status violators, witnesses, informants, and others who, instead of having an interview, must appear before an immigration judge for an asylum-only hearing.

The affirmative asylum process allows asylum seekers to remain in the United States while their asylum application is pending with CIS, or before an immigration judge if the I-589 application has been denied by CIS. Affirmative asylum applicants who are denied will be issued a Notice to Appear (NTA) before immigration court and their case will fall under the jurisdiction of the Executive Office for Immigration Review (EOIR) for a hearing before an immigration judge. In order words, applicants who are denied through affirmative asylum processing will be able to argue their case through defensive processing with the EOIR. Affirmative asylum applicants are generally not detained by the United States Immigration and Customs Enforcement (ICE). For a step by step guide on the affirmative asylum process please click here.

Defensive Asylum Overview (EOIR)

Asylum seekers facing removal proceedings may apply for asylum and withholding of removal as a defense against deportation from the United States before an immigration judge with the Executive Office for Immigration Review (EOIR). In order to apply for defensive asylum, the applicant must be in removal proceedings. Undocumented victims of persecution who are apprehended by Customs and Border Protection or at a U.S. port of entry are placed in removal proceedings. An asylum officer will conduct a credible fear interview and determine whether the alien has been persecuted or maintains credible fear of harm based on at least one of the five statutorily protected grounds. If the alien has a legitimate fear of persecution they may apply for asylum before an immigration judge in court. An adverse decision made by an immigration judge can be appealed with the Board of Immigration Appeals (BIA).

Dependents

Your spouse and unmarried children under the age of 21 can be included in your I-589 application for asylum and withholding of removal if they are physically present in the United States. If your child is over the age of 21 or is married, they must file a separate I-589 asylum application. If your spouse or unmarried children under the age of 21 are outside of the United States at the time you are granted asylum, you may petition for them by filing USCIS

Form I-730 Refugee and Asylee Relative Petition.

This graphic, created by Human Rights First an independent advocacy organization, illustrates the asylum and refugee resettlement process.

Refugees may apply for asylum through affirmative asylum or defensive asylum regardless of their immigration status unless they are found removable to a safe ‘third country’ based on a two-party or multi-party agreement between the United States and other countries (INA 208 (2)(A)).

Asylum seekers who have been denied asylum in the past by an immigration judge or Board of Immigration Appeals (BIA) must demonstrate that a material change in their circumstances has occurred since last filing allowing them to make a new asylum claim. A material change is a substantial alteration in circumstances which CIS will rely on when determining the merits of the asylum claim. Asylum recipients can eventually adjust their status to permanent residence. Capturing the applicant’s biometrics is a required part of the application process for both the affirmative asylum and defensive asylum processes.

 

Statute of Limitations

 Affirmative Asylum Overview

Asylum seekers residing lawfully in the United States or seeking lawful entry to the United States through a port of entry, can apply for asylum through the affirmative asylum process. The affirmative asylum process generally culminates in an interview conducted by an Asylum Officer, who will determine whether the applicant will be granted asylum. Exceptions to the interview requirement exist for certain alien crewmembers, stowaways, visa waiver program applicants, visa waiver overstays, status violators, witnesses, informants, and others who, instead of having an interview, must appear before an immigration judge for an asylum-only hearing.

The affirmative asylum process allows asylum seekers to remain in the United States while their asylum application is pending with CIS, or before an immigration judge if the I-589 application has been denied by CIS. Affirmative asylum applicants who are denied will be issued a Notice to Appear (NTA) before immigration court and their case will fall under the jurisdiction of the Executive Office for Immigration Review (EOIR) for a hearing before an immigration judge. In order words, applicants who are denied through affirmative asylum processing will be able to argue their case through defensive processing with the EOIR. Affirmative asylum applicants are generally not detained by the United States Immigration and Customs Enforcement (ICE). For a step by step guide on the affirmative asylum process please click here.

Defensive Asylum Overview (EOIR)

Asylum seekers facing removal proceedings may apply for asylum and withholding of removal as a defense against deportation from the United States before an immigration judge with the Executive Office for Immigration Review (EOIR). In order to apply for defensive asylum, the applicant must be in removal proceedings. Undocumented victims of persecution who are apprehended by Customs and Border Protection or at a U.S. port of entry are placed in removal proceedings. An asylum officer will conduct a credible fear interview and determine whether the alien has been persecuted or maintains credible fear of harm based on at least one of the five statutorily protected grounds. If the alien has a legitimate fear of persecution they may apply for asylum before an immigration judge in court. An adverse decision made by an immigration judge can be appealed with the Board of Immigration Appeals (BIA).

Dependents

Your spouse and unmarried children under the age of 21 can be included in your I-589 application for asylum and withholding of removal if they are physically present in the United States. If your child is over the age of 21 or is married, they must file a separate I-589 asylum application. If your spouse or unmarried children under the age of 21 are outside of the United States at the time you are granted asylum, you may petition for them by filing USCIS Form I-730 Refugee and Asylee Relative Petition.

Litigation in Immigration Court

If you are placed in immigration court, there might be forms of relief that you might be eligible for.  They key is to not give up hope and continue to fight.  The following is a general list of relief that you might be eligible to apply for in immigration court:

• You were not properly served with a Notice to Appear
•  You are not removable (deportable) as charged
•  Adjustment of status from nonimmigrant to immigrant
•  Asylum and “withholding of removal”
• “Cancellation of removal” and adjustment of status
•  Cancellation of removal for permanent residents 
•  Cancellation of removal based on extreme hardship to family members
•  Cancellation of removal for battered spouses or children
• 212(h) waiver based on 15 years rehabilitation
•  212(h) waiver based on extreme hardship
•  212(h) waiver for abused spouse or child
•  NACARA 203 suspension of deportation
•  212(c) waiver 
•  601a provisional unlawful presence waiver
•  Voluntary Departure 
•  DACA/”Dreamer” deferred action
•  Prosecutorial discretion
• “T” or “U” visa
• Private immigration bill

This is a non exhaustive list of possible forms of relief you might be eligible for.  Make sure you arrive on time and are prepared for your hearings.  Master hearings are small initial hearings.  Individual hearings are the longer hearings that determine if your application or form of relief has been granted.  It is likely you will have multiple master hearings before your individual hearing.

This page is not meant to act as legal advice for your specific case.  You should seek the advice of an immigration attorney to review the specific facts of your case as applied to the law.