• How to Apply for Asylum and Withholding of Removal
  • August 31, 2016 | Author: Alexander Joseph Segal
  • Law Firm: The Law Offices of Grinberg & Segal, PLLC - New York Office
  • What are Asylum and Withholding of Removal?

    Asylum, statutory withholding of removal, and withholding of removal under the Convention Against Torture (CAT) are three distinct forms of immigration relief.

    A person may apply for asylum affirmatively (outside of immigration proceedings) or defensively (while in immigration proceedings). A person may be granted asylum based on past persecution or prospective persecution in his or her home country. A grant of asylum confers immigration status and a path to permanent residency. An asylee may confer benefits on certain derivatives.

    Withholding of removal is only available in removal proceedings. Unlike asylum, it only applies to prospective threats to the life or freedom of the applicant (statutory) or prospective torture (CAT). An order of withholding of removal or deferral of removal (a separate CAT benefit) may only be entered after a final order of removal is first entered against the applicant. A grant of withholding of removal does not confer a lawful immigration status, a path to permanent residency, or derivative benefits. Furthermore, withholding of removal only withholds the removal of an applicant to a specific country.

    Affirmative Asylum Applications

    In order to apply for asylum outside of removal proceedings, the person must be present in the United States and file the Form I-589, Application for Asylum and for Withholding of Removal. In general, the applicant must file within one year of arrival in the United States. The applicant will have an asylum interview after filing his or her application. The applicant should receive his or her decision within 180 days of the interview.

    Although an alien cannot apply for withholding outside of removal proceedings, his or her application will be considered for withholding of removal if the applicant is served with a Notice To Appear during the pendency of the asylum application.

    Defensive Asylum Applications in Removal Proceedings and Withholding of Removal

    An alien already in removal proceedings may file the Form I-589 defensively. An application for asylum in removal proceedings on a Form I-589 shall also be considered an application for withholding of removal. It may also be considered an application for relief under CAT if the applicant indicates on the Form I-589 that he or she has a fear of torture or if the evidence submitted by the applicant suggests that he or she would be tortured in the country of intended removal. An applicant in removal proceedings may file the Form I-589 even if he or she is subject to a bar to applying for asylum and the application will be considered for withholding of removal.

    Under certain circumstances, an alien who is ordered removed may be eligible to file a motion to reopen removal proceedings or to ask the Board of Immigration Appeals (BIA) to reconsider its decision on an asylum/withholding application. In general, this is a potential remedy if there is evidence pertinent to the applicant’s eligibility for relief that is based on changed country conditions and that could not have been available at the time of the original application.

    Special Cases

    If an alien is found to be inadmissible at the border, he or she may be granted a credible fear interview if he or she expresses a fear of persecution or of being returned to his or her home country. If the alien is found to have a credible fear of persecution, he or she will be subject to section 240 or section 208(c) (if a stowaway) proceedings.

    Aliens who are placed in expedited removal proceedings or who become subject to an order of reinstatement of removal may express a fear of persecution and be granted a reasonable fear interview. Such aliens will only be eligible for withholding of removal and not for asylum. If the alien is found to have a credible fear of persecution, he or she will be referred to immigration proceedings for full consideration of the claims.

    Conclusion

    If an alien believes that he or she has a claim to asylum or withholding of removal, he or she should consult with an experienced immigration attorney immediately. An experienced immigration attorney will be able to assess the alien’s situation and determine whether it warrants applying for asylum and/or withholding of removal. If so, an experienced immigration attorney will be able to guide the applicant through the entire process. The asylum and withholding of removal application process is complicated, and it requires extensive documentation and testimony to corroborate an applicant’s claims.


    It is important to note that there are severe penalties for filing a “frivolous” asylum application or for not being truthful in the context of the asylum application process. Applying for asylum and withholding of removal is a serious step and not simply a procedural way to seek immigration status or relief from removal. It is crucial to be honest when making an asylum claim and throughout the application process.