Asylum and Withholding Removal

Any person who fears returning to their country of citizenship due to persecution may, with certain exceptions, qualify for asylum in the United States if they can prove past persecution, or a well-founded fear of future persecution, on account of any one of five protected grounds.  These are persecution on account of: 

• Political opinion
• Race
• Religion
• Nationality
• Membership in a particular social group

An application for asylum (Form I-589) must, with very few exceptions, be filed within one year of the person’s arrival in the United States.  Where the person files their Form I-589 depends on whether the person is applying for defensive asylum or affirmative asylum.

Defensive asylum is when a person who is already in removal proceedings with the immigration court decides to apply for asylum as a form of relief to avoid being ordered removed to their country of nationality or citizenship and in which they fear they will be persecuted.  In a defensive asylum, the person will file their I-589 application with the court and, upon hearing the case on its merits, the immigration judge will decide whether to grant the person asylum in the United States or deny it and order them to be removed from the United States (assuming it is the only form of relief they applied for).  

Affirmative asylum is when a foreign national who is not in removal proceedings decides to nevertheless apply for asylum because they are afraid of returning to their country and they want to present their case to U.S. immigration authorities.  In an affirmative asylum, the applicant will file their I-589 with the U.S. Citizenship and Immigration Services (USCIS) and, after appearing for a biometrics appointment, the applicant will be scheduled for their asylum interview at the USCIS Asylum Office.  The applicant will then be interviewed by an asylum officer who can either grant them asylum in the United States or refer the person’s application to the immigration judge (if at that time the person is already without legal status in the United States), effectively placing them in removal proceedings.  When an unsuccessful affirmative asylum applicant is referred to the immigration court, the person then has a second chance to present their case, but this time before an immigration judge and with a DHS-ICE attorney present whose job it is to present the U.S. government’s case in opposition to the person’s asylum request.

Regardless of whether a person is applying for affirmative asylum or defensive asylum, they are allowed to have an attorney representing them throughout their entire case, from the time of preparing and filing their application, to accompanying them to their interview, and to representing them in court if it becomes necessary.  In any case, an asylum applicant will do well to provide, in addition to their own credible testimony, ample documentary evidence in support of their asylum application.  

There are certain bars to asylum, which means that even if the person successfully demonstrates that they have been or will be persecuted in their country on account of one of the five protected grounds, asylum will still be denied to them.  These bars to asylum include: 

• having assisted in the persecution of others
• being a threat to U.S. safety or security
• having already “firmly resettled” in another country
• having previously applied for and been denied asylum
• applying for asylum more than one year after entering the United States, or
• having traveled through a “safe third country.”

On the other hand, a successful asylum applicant who is not subject to any bar, will be granted asylum indefinitely in the United States, will be able to petition to have his or her spouse and/or unmarried children join him or her in the United States, and he or she will be able to apply for adjustment of status (permanent residence) after one year of physical presence as an asylee in the United States. 

Persons who fear returning to their country of citizenship due to persecution but who can no longer apply for asylum because they did not file their asylum application within one year of their arrival in the United States, may still seek relief with the immigration court in the form of “Withholding of Removal”.  Withholding of removal is similar to asylum in that the applicant fears they will be harmed or persecuted if returned to their country and, if the relief is granted, the person will not removed to that country where they fear persecution.  But in order to win withholding of removal the person needs to establish that it is “more likely than not” that they will be persecuted on account of one of the five protected grounds.  Because the standard of proof is much higher than that which is required for asylum, it is more difficult for anyone to be granted withholding of removal than it is to be granted asylum.  Moreover, withholding of removal differs greatly from asylum in that the person granted withholding of removal will not be able to petition for any family members to join them in the U.S. nor does it provide a pathway for the person to be able to apply for adjustment of status to that of permanent resident.