Stopping Removal (Deportation) With an Asylum Application

Even in deportation proceedings, it's not to late to apply for and be granted asylum in the United States.

By , J.D.

If you are facing removal (formerly known as deportation) proceedings, meaning that U.S. immigration authorities are trying to expel you from the United States, but you fear returning to your home country, you might have one or two options that could keep you safe. It involves applying for asylum, along with a lesser but sometimes useful remedy called "withholding of removal."

However, the asylum application process is different now than if you were filing without the threat of removal hanging over you, as described here.

Difference Between Applying for Asylum "Affirmatively" and in Immigration Court Proceedings

People who are not in deportation proceedings can first file their application for asylum and withholding (on Form I-589) directly with U.S. Citizenship and Immigration Services (USCIS). After the I-589 has been accepted for processing, they will attend an interview at a USCIS asylum office. Only if the interviewing officer does not grant asylum will the person be referred to immigration court proceedings to present the application all over again, in front of a judge.

But if you are already in immigration court proceedings without having filed an I-589 and been referred by the asylum office, you will have to file your application for asylum straight with the immigration judge. See How to Complete Form I-589 for U.S. Asylum for tips on this part of the process.

Do your best to hire an immigration attorney regardless, because this is a complex and demanding area of law. It involves more than filling out forms. You will need to present a cogent, convincing case for why you are afraid and how your fear matches the grounds for receiving recognition as a refugee, deserving of asylum.

Grounds for Receiving Asylum and Withholding of Removal

Asylum is granted to aliens who can prove they are unable or unwilling to return to their home country due to having faced past persecution or having a well-founded fear of future persecution, provided that persecution was based on at least one of five grounds: their race, religion, nationality, political opinion, or membership in a particular social group.

Withholding of Removal is a related remedy, which you would ask for at the same time as asylum. It is granted to foreign-born persons who can prove that, if returned to their home country, their life or freedom would be threatened on account of one of the five protected grounds listed above. The applicant must show a "clear probability" of persecution, meaning that it is "more likely than not" that the person will be subject to persecution.

In addition, there is a separate ground of withholding of removal provided under the United Nations Convention Against Torture, for applicants who would be tortured if returned to their home country. (This is sometimes called "CAT" relief.)

The standards for withholding of removal are harder to meet than those for asylum. But withholding is a useful option in cases where the person is barred from a grant of asylum for some reason, such as the past commission of a crime; yet they would truly be killed or tortured if returned home. Some people are even barred from a grant of withholding of removal, however, including those who have participated in the persecution of others or those who have committed a particularly serious crime.

A grant of withholding of removal is not as beneficial as a grant of asylum. It doesn't lead to a green card; it is just the U.S. government's way of saying, "We won't deport you for now, because of what you would face in your home country."

What to Submit: Form I-589 Plus Documents

Filling out Form I-589 is just the beginning. You should also prepare a detailed personal statement explaining your fear of persecution need for asylum, collect and include copies of documents proving who you are and what danger you face in your home country, prepare affidavits from witnesses, and more.

Remember that many people apply for asylum, and U.S. immigration authorities have seen many frauds, where people "borrowed" a friend's story or made one up. Your job is to anticipate these doubts and find as many ways to give convincing personal information corroborated by outside evidence as possible.

What Will Happen in the Immigration Court Hearing

By the time of the hearing before the immigration judge, you (hopefully with the help of your attorney) will have submitted all the documentation described above. There is no fee to submit this application.

At the hearing, your attorney will have a chance to ask you questions so that you can personally tell the judge your story and why you have faced or currently fear persecution if returned to your home country. (See How to Prepare for an Immigration Removal Hearing.)

The judge may interrupt with questions. The attorney for the U.S. government will also have a chance to cross-examine you (ask questions). You may call witnesses to testify about why you need asylum, as well, whether they are friends of yours or outside experts, for example on conditions in your country. The government attorney may cross-examine your witnesses (ask them more questions, and try to get them to admit that your case isn't so strong after all).

Your memory becomes very important in this process. As well as you might think you know your own story, anyone can get confused by dates and other details. And if you start saying things that are inconsistent, the judge might doubt your credibility (think you are lying).

The hearing is not a pleasant process, but should give you the chance to fully tell your story and present your evidence. It might last well beyond one day. If it needs to be continued to another day, it will typically be rescheduled several weeks or possibly months into the future.

The Immigration Judge's Decision on Your Asylum Case

The immigration judge will most likely tell you his or her decision at the end of the hearing. It will take the judge a long time to explain the decision. You might be frustrated waiting to hear the final "approved" or "denied." That is because the judge is trying to build a record in case either you or the government decide to file an appeal. (The transcript will become part of your file.)

If either you or the government does appeal the judge's decision (both of which are possible), the Board of Immigration Appeals (B.I.A.) and later the federal court that hears your case will not only review your application and documents, but read the transcript of the judge's decision to figure out whether the judge acted correctly.

If your asylum case is eventually approved, you will be given a written statement reflecting that. Later, an form called an "I-94" will be mailed to you, showing your status as an asylee and your right to work. It should have no expiration date on it.

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