No single issue has defined the Trump Administration’s immigration policies as much as its attempts to restrict applications for asylum. From detaining child applicants in cages at the southern border to housing applicants in Mexico while awaiting asylum hearings, the current administration has done everything it can to deny benefits to individuals seeking refuge from persecution in their home countries.
A series of decisions by the administration has greatly restricted the ability of asylum applicants to obtain relief based on domestic violence, gang violence or attacks based on family ties. Cases that were routinely approved by immigration officials or immigrthion judges under past administrations are now routinely denied under the current administration.
But the battle goes on. We fight for our clients at immigration interview, before immigation judges, at the Boardof Immigration appeals, and where appropriate, before a federal judge. The average case can take 2-4 years during which the applicant is often eligible for employment authorization.
A review of the basic provision of US asylum law follows:
An applicant for asylum must prove that he or she is unable or unwilling to return to their home country due to a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion.” This requires a showing that the government in the applicant’s home country is unwilling or unable to provide protection from this persecution and that the applicant cannot relocate to a different area in the home country. The asylum application must be filed 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 granted asylum the successful applicant can obtain asylum for a spouse or any children under 21 even if the relative is outside the US. In addition, a successful asylee can apply for a green card a year later and eventually for US citizenship. The failure to file within one year will often limit the applicant to the lesser relief known as Withholding of Removal.
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/)
Withholding of Removal, like asylum, is based upon a well-founded fear of persecution. Unlike asylum, which is discretionary, an immigration judge must grant withholding of Removal, if the applicant can prove their case. However, withholding requires a much higher “burden of proof. ” . 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 Withholding is granted, the judge will issue a deportation or Removal order but “withhold” that Order and allow the applicant to remain in the US and work without restriction. However, a grant of withholding does not enable the immigrant to petition for other family members or apply for permanent residence.