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Daniel M.Pell: Immigration & State and Federal Trial Practice.


Asylum

Non-citizens who come to the United States may apply for asylum, if they are refugees and if they fear persecution on account of one of the five protected grounds(race, religion, nationality, membership in a particular social group, or political asylum). A refugee is a person outside of his or her home country who is not willing to return to his home country because he or she has a well-founded fear of persecution on account of the five grounds mentioned above.

A person who comes to the United States must apply for asylum within one(1) year of him or her reaching the United States, absent some compelling reason for not having filed within that one(1) year deadline.

If a person can show that there is at least a 10% probability that she or he will be persecuted on account of one of the five(5) protected grounds mentioned above, the person will be granted asylum by an asylum officer, or if not granted by the asylum officer, will be referred to an Immigration Judge, who will then decide the case. If the Immigration Judge decides that the person has a well-founded fear of persecution on account of one of the five(5) protected grounds, that person will be granted asylum by the Immigration Judge.

Asylum leads to the green card(lawful permanent residence) and eventually to U.S. Citizenship. A person granted asylum(called an asylee) also has the right to live and work in the United States, but should not leave the U.S. until they are granted Lawful Permanent Residence. This is conservative but safe advice. In the meantime, persons granted asylum may obtain advance parole(form I-131), to travel outside the U.S., but advance parole does not guarantee that the person will be re-admitted to the U.S., so this person should always consult with a qualified immigration attorney to see if there will be problems with the asylee gaining re-entry to the U.S.

There are additional forms of relief from removal which may be claimed in Immigration Court proceedings brought against a non-citizen by the government seeking to remove that person from the U.S. There is no present way to make an affirmative claim for these additional forms of relief.

These forms of relief are: Withholding of Removal under the Immigration and Nationality Act, Withholding of Removal under the United Nations Convention Against Torture, and Deferral of Removal under the United Nations Convention Against Torture.

Basically, none of these forms of relief allow a person to obtain Lawful Permanent Residence(LPR status….having a ‘green card’) or US Citizenship, but they do permit the person to stay and work in the U.S. while the grant of relief is in effect.

Withholding of Removal under the Act requires the same type of proof as does asylum but has a higher burden of proof, that is the applicant must prove it is more likely than not that the person’s freedom or life will be threatened on account of one of five protected grounds(race, religion, nationality, membership in a particular social group, or political opinion). Asylum requires less proof, but gives greater benefits than does withholding of removal under the Immigration and Nationality Act.


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