ASYLUM, WITHHOLDING OF REMOVAL & SPECIAL IMMIGRANT JUVENILES

US immigration law provides various programs for the protection for individuals fleeing persecution in their home country. These programs differ widely and they are often enforced differently in different areas of the country but they all have several key elements in common: the applicant must carefully document and prove the acts which constitute the persecution and file the appropriate application in a timely manner. We outline these programs below.

ASYLUM

If you are filing for asylum, you must prove that you are unable or unwilling to return to your home country due to a “well-founded fear of persecution on account ofrace, religion, nationality, membership in a particular social group or political opinion.” You must also show that your government is unwilling or unable to protect you from this persecution and that you cannot relocate to a different area in your country. You must file your application for asylum within one year of entering the US unless changed circumstances rise after the one-year period that creates a basis for the late filing. If you are granted asylum you can obtain asylum for a spouse or any children under 21 even if your relative is outside the US. In addition, if you are granted asylum you can apply for a green card a year later and eventually for, US citizenship. The failure to file within the one year will often limit you tolesser relief known as Withholding of Removal.The success  of your asylum application will depend on your ability to prove “a reasonable person in his circumstances would fear persecution.”

Remember that asylum is discretionary and immigration judges have wide latitude to approve or deny cases. This is best illustrated by reviewing the denial rates of immigration judges that are published online by TRAC, a nonprofit organization that reports the approval/denial rates of all experienced immigration judges. (trac.syr.edu/immigration/reports/judgereports/)

The reports show that New York, overall, has a denial rate of about 30% on asylum cases (meaningthe Immigration Judge approves 70% of their asylum cases). Certain individual judges have denial rates of less than 5%. In Atlanta, by comparison, the judges have an overall denial rate of over 90% and one judgedenies 97.7% of his cases! You probably do not want to live in Atlanta when you apply for asylum.

WITHHOLDING OF REMOVAL

Withholding of Removal, like asylum, is based upon a well-founded fear of persecution. Unlike asylum, which is discretionary, an immigration judge must grant you withholding of Removal, if you prove your case. However, you need a much higher “burden of proof” in Withholding cases. Unlike asylum’s “reasonable” standard in which a “10% chance of being shot” could be sufficient, a Withholding case requires a “clear probability” of future persecution which means “more likely than not”. If you are granted Withholding, the judge will issue a deportation or Removal order but “withhold” that Order and allow you to remain in the US and work without restriction. However, you will not be able to petition other family members or apply for permanent residence. If you leave the US after a grant of Withholding you will not likely be allowed back in.

SPECIAL IMMIGRANT JUVENILE (SIJ)

SIJ is a program that allows victimized youths from broken families to remain in the US and obtain permanent residence. To qualify, the youth must be under 21 and (1) the child is declared to be a dependent by a state juvenile court (2) and cannot be reunified with one or both parentsdue to the parent’s abuse, neglect, abandonment of the child (3) and it is in the best interest of the child not to be returned to his parent’s country of nationality. In many states, including New York, the child can be living with one parent in the US and the other parent can also be living in the US as long as the absent parent is guilty of abuse, neglector abandonment of the child.

By far, the largest number of children who qualify for SIJ are from countries in Central America where they are also fleeing persecution at the hands of gangs with government acquiesce. The choice between asylum and SIJ will depend on the facts of each case, but the decision can have major consequences. A child granted asylum may have difficulty returning to his home country but can often petition for one or both parents when the child later becomes a US citizen. A child granted SIJ can return home after obtaining permanent residency but can never petition for either parent, including the custodial one.