AsylumDefensive Asylum

Asylum Relief

Asylum relief is granted to qualified applicants, regardless of their countries of origin, who are unable or unwilling to return to their country of nationality because of past persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

When asylum applicants are granted asylum relief:

• They are permitted to remain in the United States,
• Asylum relief is also granted to their family members who are in the United States and were included in their asylum application,
• They may also petition to bring their eligible family members to the United States, and
• In time, they may apply for lawful permanent residence and, ultimately, citizenship.  

Applying for Asylum

Asylum-seekers must apply for asylum within 1 year from the date of last arrival in the United States. If an applicant seeks asylum more than 1 year after arrival, an applicant must show either changed circumstances that materially affect the applicant’s eligibility or extraordinary circumstances that delayed filing an application. An applicant must also show that the application was filed within a reasonable amount of time given those circumstances.

• Aliens who are not in removal proceedings can apply for asylum with DHS. This is called an “affirmative” asylum claim.
• Aliens who are in removal proceedings can apply for asylum with EOIR. This is called a “defensive” asylum claim.

EOIR –– The Defensive Asylum Process

The defensive asylum process applies to aliens who are in removal proceedings and request asylum from an immigration judge. The process is called “defensive” because it can provide relief from being removed from the United States.

An immigration judge hears an applicant’s claim and also hears any concerns about the validity of the claim that are raised by the DHS, Immigration and Customs Enforcement attorney, who represents the U.S. government in immigration court. The immigration judge adjudicates each case individually, on the evidence provided and in accordance with immigration law, to determine whether the applicant is eligible for asylum and merits a grant of asylum.  

If an applicant is ineligible for asylum, an immigration judge determines whether the applicant is eligible for any other form of relief or protection from removal. If an applicant is ineligible for any relief or protection from removal, an immigration judge will deny the application and order the applicant removed from the United States. If the alien or DHS disagrees with the immigration judge’s decision, either party or both parties may appeal the decision to EOIR’s appellate component, the Board of Immigration Appeals (BIA). If the alien disagrees with the BIA’s ruling, the alien may file a petition for review (an appeal) with the federal circuit courts of appeal.

Legal Bars to Asylum

Under immigration law, certain aliens are barred from obtaining asylum. They include those who:

• Have firmly resettled in another country prior to coming to the United States;
• Have already applied for and been denied asylum, unless there are changed circumstances that materially affect the alien’s eligibility for asylum;
• Have ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion;
• Were convicted by final judgment of a particularly serious crime (including aggravated felony convictions), and therefore constitute a danger to the community of the United States;
• Are believed to have committed a serious nonpolitical crime outside the United States before arriving in the United States;
• Pose a danger to the security of the United States;
• Are members or representatives of a foreign terrorist organization, unless the Secretary of the Department of Homeland Security (DHS) determines that they are not a danger to the security of the United States; or
• Have engaged in or incited terrorist activity. 

Withholding of Removal Relief

To qualify for withholding of removal relief aliens must establish that it is more likely than not that their life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion in the proposed country of removal.  

An order granting withholding of removal prohibits an alien’s removal to the country where an alien’s life or freedom would be threatened –– but allows removal to a third country where an alien’s life or freedom would not be threatened.  

Withholding of removal:

• Does not provide relief for eligible family members in the United States,
• Does not provide the ability to petition to bring eligible family members to the United States,
• Does not lead to lawful permanent residence and, ultimately, citizenship, and
• Does provide relief recipients (not their family members) the ability to apply (with USCIS) for work authorization.  

Claims for withholding of removal are adjudicated by EOIR immigration judges during regular removal proceedings. Immigration judge decisions may be appealed to the BIA. If the alien disagrees with the BIA’s ruling, the alien may file a petition for review (an appeal) with the federal circuit courts of appeal.  

Convention Against Torture (CAT) Protections

CAT protections relate to the obligations of the United States under Article 3 of the United Nations Convention Against Torture. This is an international treaty provision designed to protect aliens from being returned to countries where they would more likely than not face torture. Torture is defined, in part, as severe pain or suffering (physical or mental) that is intentionally inflicted by or at the instigation of or with the consent or acquiescence of a public official, or other person acting in an official capacity.  

Under this treaty provision, the United States agrees not to “expel, return, or extradite” aliens to another country where they would be tortured.  
Regarding eligibility, CAT protections:

• Require applicants to establish that it is more likely than not that they would be tortured if removed to a specific country,
• Do not apply to all types of harm that qualify as persecution. Not all types of harm that qualify as persecution necessarily qualify as torture,
• Do not require applicants to establish that the torture is based on one of the five protected grounds (race, religion, nationality, membership in a particular social group, or political opinion), as is required for asylum or withholding of removal, and
• May be granted to criminals, terrorists, and persecutors, as they cannot be returned to a country where they would face torture.  
CAT protections:
• Allow the detention of CAT recipients, where appropriate,
• Allow the removal of CAT recipients to a third country where they would not be tortured,
• Allow eligible CAT recipients, but not their family members, to apply for work authorization,
• Do not provide for CAT recipients to become lawful permanent residents, and
• Do not provide for CAT recipients to bring family members to the United States.  

Withholding of Removal (Under CAT) and Deferral of Removal

CAT provides two types of protections, “withholding of removal (under CAT)” and “deferral of removal.” Both protections ensure that aliens are not returned to a country where they would face torture.  

Withholding of Removal (Under CAT)

Withholding of removal (under CAT) prohibits returning aliens to a specific country where they would face torture. It is a more secure form of protection than deferral of removal. It can be terminated only if DHS establishes that an alien is not likely to be tortured in that country.

Deferral of Removal

Deferral of removal also prohibits returning aliens to a specific country where they would face torture. However, deferral of removal is granted to aliens who likely would face torture but who are ineligible for withholding of removal (under CAT), for example, certain criminals and persecutors.  

Deferral of removal is a more temporary form of protection. It can be terminated more quickly and easily if an alien no longer is likely to be tortured in the country of removal, or if the U.S. government receives assurances that the alien will not be tortured if returned.  

CAT claims are adjudicated by EOIR immigration judges during regular removal proceedings. Immigration judge decisions may be appealed to the BIA. If the alien disagrees with the BIA’s ruling, the alien may file a petition for review (an appeal) with the federal courts of appeal.