Facing Removal or Deportation? Consider These Forms of Removal Relief (Part 2)

June 7, 2017 3:22 pm
by David Jakeman

A few days ago, we briefly reviewed three forms of removal relief available to immigrant families.  Those were deferred action, cancellation of removal, and adjustment of status.  These types of relief are generally better suited to those immigrants who have been in the United States for a long period of time and have established social, family, and financial roots.  However, these relief options probably won’t apply to immigrants who have recently arrived to the United States.  Rather, recent immigrants should consider applying for asylum, withholding of removal, or protection under the convention against torture, assuming they have a valid basis for such claims.  These three forms of relief can be complex and nuanced. Therefore, you should consult the experienced immigration attorneys at Beacon Immigration to find out if this is the right option for you or your loved one.

Asylum

Asylum is a type of relief subject to the discretion of the immigration court.  Eligibility for asylum turns on “refugee” status.  A refugee is a person who is outside his country of origin and “who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country 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.”

Applicants must apply for asylum within one year of entering the United States unless they meet an exception.  Additionally, if the court does grant asylum, relief from removal will terminate once conditions in the immigrant’s home country change such that he can no longer be considered a “refugee.”  However, if after a year the conditions have not changed, then the immigrant may adjust to legal permanent status.

Withholding of Removal

This is a form of relief that is related to asylum.  Formally, it is known as “restriction on removal.”  The applicant must demonstrate that his life or freedom would be threatened in his home country based on his race, religion, nationality, membership in a particular social group, or political opinion.  This sounds a lot like asylum but there are some key differences. For instance, withholding of removal requires a higher standard of proof than that required for asylum.  Thus, most applicants would rather apply under asylum.  Yet, unlike asylum, withholding does not have a one-year filing deadline and if the evidentiary standard is met, the court must grant relief.  Therefore, withholding of removal is mandatory and not subject to the discretion of the immigration court.

Convention against Torture

Under the 1994 U.N Convention against Torture (CAT), an immigrant must not be removed to his home country if he can prove that he would be tortured upon his return.  Unlike asylum and withholding, there is no requirement that the torture be on account of a protected class like religion.  However, like withholding, the evidentiary standard under CAT is higher than that required for asylum.  Nonetheless, this is a form of relief worth considering if the immigrant has missed the one-year deadline for asylum or he cannot prove a threat of persecution based on a protected class.