To succeed in the asylum process in the USA an applicant must be able to prove that they have faced (or are at risk of facing) persecution in their home country. The key to making a successful asylum case lies in presenting strong and convincing evidence.
This evidence can come in various forms including the applicant’s own testimony, medical certificates, police reports, court records, statements from individuals with personal knowledge of the case, proof of membership in a particular group and background materials regarding the country’s conditions.
Alternatives to Claiming Asylum Immigration in the United States
There are alternative immigration options available to those seeking to remain in the United States. One option is withholding of removal, which is comparable to asylum in many ways. This is applied for using the same form as asylum and requires demonstrating a fear of persecution if returned to the applicant’s home country.
If granted, the individual is allowed to remain and work legally in the U.S. but cannot apply for permanent residency or leave the country without risking inadmissibility. “Withholding of removal” is often a viable option for those who are not eligible for asylum but still face potential danger if returned to their country of origin.
Another alternative is seeking protection under the United Nations Convention Against Torture (CAT). Unlike asylum and withholding, CAT protection does not necessitate demonstrating a fear of persecution. However, it is a difficult path to obtaining relief and is only recommended if the individual has committed serious crimes while residing in the U.S.
Understanding Withholding of Removal in US Immigration
Under U.S. law, aliens cannot be sent back to countries where their life or freedom is endangered because of their race, religion, nationality, membership in a certain social group or political views.
Withholding of removal is only an option for those facing removal proceedings. If the individual can prove that their life or freedom is threatened in a particular country, withholding of removal must be granted by the immigration judge.
The eligibility criteria for withholding of removal are different from those for asylum. While asylum requires a well-founded fear of persecution, withholding of removal requires the individual to demonstrate a clear probability of persecution if they are returned to their home country.
This means that the asylum applicant must show that it is possible they will be persecuted, while the withholding of removal applicant must show that it is probable they will be persecuted.
There are also differences in the benefits of receiving either asylum or withholding of removal. Withholding of removal offers the right to remain and work in the U.S., but also comes with restrictions like being unable to apply for permanent residency and being barred from leaving the country without losing the right to re-enter.
Withholding of removal can be a good option for those who missed the one year deadline for filing for asylum or for those who are ineligible for asylum due to a criminal record.
Relief in US Asylum Immigration Applications under the United Nations Convention Against Torture
An individual who is afraid of being subjected to torture by a public official or person acting in an official capacity, either with their consent or approval, if they are returned to their country of origin, might be eligible for relief under the United Nations Convention Against Torture.
This provision permits the individual to stay in the United States if they are prone to be subjected to torture in their country of origin. In contrast to asylum and withholding of removal, to meet the criteria for relief under the Convention Against Torture, an individual does not have to demonstrate that the torture they face. There is also no time limit for filing an application for CAT relief.
The standard for relief under the Convention Against Torture is that it is more likely than not that the applicant would face torture, which is a stringent requirement.
The relief under the Convention Against Torture is not frequently granted because it necessitates a minimum of 51% chance that the individual will be subjected to torture if they are returned to their country of origin.
The main reason someone might seek relief under the Convention Against Torture is that if the applicant meets the high standard for relief, they must be granted relief, even if they have been convicted of serious crimes (including aggravated felonies) in the U.S. Essentially the immigration judge is obligated to grant the application regardless of any concerns they may have.
However, if the U.S. Government deems that an individual who has been granted relief under the Convention Against Torture is a threat to the community due to serious crimes they have committed, then the U.S. Government may detain them even after they have been granted relief. Moreover, an individual who has been granted relief under the Convention Against Torture cannot pursue permanent residency or leave the U.S. The relief under the Convention Against Torture does not extend any benefits to the applicant’s spouse or children.
