ASYLUM
AND
DEPORTATION/REMOVAL DEFENSE
Asylum
Restriction on Removal/Withholding
of Removal
Convention Against Torture
(CAT)
Voluntary Departure
Cancellation of Removal
Section 212(c) Discretionary
Waiver
Temporary Protected Status
Release from Detention
Petitions for Review
in the Ninth Circuit Court of Appeal
Petitions for Writs of Habeas
Corpus in the United States District Courts
ASYLUM
An asylum applicant must show that she or he has experienced past
persecution or has a well-founded fear of future persecution on
account of race, religion, national origin, membership in a particular
social group, or political opinion. Persecution includes physical
violence (including rape, torture, and assaults), threats of serious
harm, detention and confinement, emotional/ psychological harm,
deliberate imposition of substantial economic disadvantage, and
severe and pervasive discriminatory measures. With certain exceptions,
an applicant must file for asylum within one year of entry into
the United States. Furthermore, there are numerous statutory and
regulatory bars for asylum, which include "firm resettlement" (i.e.
receiving an offer of permanent resident status from a safe third
country before arriving in the U.S.) and past criminal activities.
Asylum can be made as an affirmative application or as a "defensive"
application once removal proceedings have been initiated
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RESTRICTION ON REMOVAL/WITHOLDING
OF REMOVAL
The U.S. may not remove an alien to a country if the Attorney General
decides that there is a clear probability that the alien’s life
or freedom would be threatened in that country because of the same
five grounds applicable to asylum. Applicants for asylum are automatically
considered for withholding of removal, but withholding of removal
is more difficult to obtain and provides fewer, more limited benefits.
However, in some circumstances, an alien may be eligible for withholding
of removal but not asylum. This may occur where the applicant is
barred from asylum due to the one-year rule, a criminal conviction,
or firm resettlement.
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CONVENTION AGAINST TORTURE (CAT)
Relief under the Convention Against Torture is available if there
are "substantial grounds" for believing that a person is in danger
of being tortured upon return to the country of removal. A person
who is ineligible for asylum may qualify for relief under the Convention
Against Torture, as persons with criminal convictions may qualify
for protection and there is no requirement that the torture be on
account of political opinion, religion, race, nationality, or membership
in a particular social group. The remedy under CAT, however, is
limited to "withholding of removal" or "deferral of removal."
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VOLUNTARY DEPARTURE
Voluntary Departure allows a person a period of time in which to
leave the United States without an order of removal. There are two
forms of voluntary departure, each with its own rules. First, voluntary
departure may be granted by the Attorney General prior to the conclusion
of removal proceedings. Second, the immigration judge may grant
voluntary departure at the conclusion of removal proceedings. The
first form of voluntary departure is generally easier to obtain.
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CANCELLATION OF REMOVAL
Cancellation of Removal is a discretionary form of relief. This
means that even if the applicant meets all of the requirements listed
below, the immigration judge may still deny the case in an act of
discretion. In deciding whether to exercise discretion, the judge
will balance the positive and negative aspects of the applicant’s
life. Certain groups of people, such as those who have already received
specific types of relief and those who have persecuted others, are
ineligible for cancellation of removal.
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SECTION 212(c) DISCRETIONARY WAIVER
Certain aliens with criminal convictions may be eligible for a discretionary
waiver of deportation/ removal under INA §212(c). Although Congress
repealed §212(c) in 1996, this discretionary form of relief remains
available to some aliens who fall within certain exceptions carved
by the courts.
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TEMPORARY PROTECTED STATUS
emporary Protected Status is available for people from countries
that the U.S. government has determined are too dangerous to return
to, or are unable to accept a large number of returning nationals.
People with Temporary Protected Status are allowed to work in the
United States while they have this status, but they must register
with the government every year.
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RELEASE FROM DETENTION
It is difficult to pursue an asylum claim while in custody. Detained
aliens can be released from custody under a bond of not less than
$1500 or on conditional parole. If a bond is set by the INS, the
respondent has a right to a bond redetermination hearing before
an Immigration Judge. An appeal from the judge’s decision must be
made to the BIA within ten days of the decision.
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PETITIONS FOR REVIEW IN THE NINTH
CIRCUIT COURT OF APPEALS
Petitions for review may be filed in the U.S. courts of appeal to
obtain review of a decision of deportation, exclusion or removal
issued by the Board of Immigration Appeals (BIA). In addition, a
petition for review may be filed to obtain review of a removal order
issued by the United States Immigration and Customs Enforcement
(ICE) under certain provisions of the Immigration and Nationality
Act. Challenge to decisions by the BIA or ICE involve legal, constitutional,
factual, or discretionary claims. The REAL ID Act expands the jurisdiction
of the courts of appeals to consider, on petition for review, certain
issues that were previously precluded. Determining whether the court
of appeal possession subject matter jurisdiction to review a particular
decision or issue requires complicated legal analysis and is dependent
on constantly evolving case law. While the INA contains several
bars to review, these bars do not apply if the petition for review
raises a question of law or constitutional claims.
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PETITIONS FOR WRITS OF HABEAS CORPUS
INI THE UNITED STATES DISTRICT COURTS
Persons ordered removed by a final administrative order and held
without bond may have recourse through a habeas corpus petition.
Habeas petitions challenge removal orders, claim ineffective assistance
of counsel, or assert unconstitutional detention. While the REAL
ID Act bars noncitizens from the right of habeas corpus review in
federal district courts for most detention and deportation orders,
an alternative recourse is available before the U.S. courts of appeal.
The REAL ID Act also purports to eliminate review of final orders
of removal, deportation or exclusion by habeas corpus, although
this has been challenged as unconstitutional.
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The information you obtain at this site is not, nor is it
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