If you are afraid to return to your home country, you may be eligible for asylum. Asylum is a form of protection offered by the U.S. Government to foreign nationals who are in the United States and are afraid to return to their home countries. To be eligible for asylum, you must have suffered persecution or fear that you will be persecuted in the future because of your race, religion, nationality, political opinion, or membership in a particular social group. The term “persecution” encompasses acts such as physical violence, rape, torture, threats of harm, unlawful detention, unlawful surveillance, forcing you to engage in conduct abhorrent to your deepest beliefs, severe discrimination and harassment, and substantial economic deprivation.

Even if you establish you have or will be persecuted because of your race, religion, nationality, political opinion, or membership in a particular social group, you may be ineligible for asylum. You may not be permitted to apply for asylum if you:

• Did not file your Form I-589, Application for Asylum and for Withholding of Removal within one year of your last arrival in the U.S. unless you can establish an extraordinary or changed circumstances excusing your delayed filing;
• Had a previous asylum application denied by the Immigration Court or Board of Immigration Appeals; or
• Can be removed to a safe third country under an agreement between the United States and other countries.

In addition, you will not be granted asylum if you:

• Ordered, incited, assisted, or otherwise participated in the persecution of others, because of their race, religion, nationality, political opinion, or membership in a particular social group;
• Have been convicted of a “particularly serious crime” and you pose a danger to the United States;
• Have committed a “serious nonpolitical crime” outside the United States;
• Pose a danger to United States’s security;
• Firmly resettled in another country before arriving in the United States;
• Are engaged, have engaged, or are likely to engage in terrorist activity or are the spouse or child of an individual who engaged in terrorist activity during the last 5 years;
• Have been convicted of unlawfully re-entered the United States;
• Have been convicted of alien harboring or smuggling;
• Have been convicted of crimes that the adjudicator knows or has reason to believe were related to the activity of a criminal street gang;
• Have been convicted of driving while intoxicated or impaired where such impaired driving was the cause of serious bodily injury or death of another;
• Have been convicted of a second or subsequent offense for driving while intoxicated or impaired;
• Have been convicted of crimes involving conduct amounting to a crime of stalking, child abuse, child neglect, or child abandonment, as well as various domestic violence-related offense (you are also barred from asylum if the adjudicator knows or has reason to believe have engaged in battery or extreme cruelty within the context of domestic violence, regardless of whether you were convicted of a crime);
• Have been convicted of a misdemeanor offenses related to the possession or use of false identification, the receipt of a public benefit, or possession of a controlled substance or paraphernalia (other than a single offense involving possession for one’s own use of 30 grams or less of marijuana); and/or
• Have been convicted of any felony.

You may request asylum by filing a “defensive” asylum application or pursuing an “affirmative” asylum application referred to the Immigration Court while you are in removal proceedings and you are seeking to avoid being removed from the United States. Your asylum application will be considered by an Immigration Judge at an Individual Merits Hearing. If you are granted asylum, you will be able to:

• Remain in the United States indefinitely;
• Work legally in the United States;
• Obtain derivative asylee status for your spouse and/or unmarried children under the age of 21;
• Travel outside the United States; and
• Become a lawful permanent resident (i.e. green card holder).

The process for seeking asylum is complicated. Asylum law is constantly evolving and extremely nuanced. There are many questions that need to be addressed such as (1) what harm were you subjected to?; (2) who harmed you?; (3) why were you harmed?; and (4) are there any mandatory grounds for denial present? Our team of experienced and compassionate immigration attorneys can help you navigate this complex landscape and present your strongest case.

If you fear persecution in your home country, but are ineligible for asylum because you have been convicted of an aggravated felony, failed to file your asylum application within 1 year of entry, or being subject to a mandatory bar, you may be eligible for withholding of removal if you fear returning to your home country. A grant of withholding of removal prohibits the United States government from returning you to your home country if your life or freedom would be threatened due to your religion, race, nationality, political opinion, or membership in a particular social group. While withholding of removal is similar to asylum in many aspects, ultimately, it is an inferior form of relief. You may be able to remain in the United States and work legally. However, unlike asylum, there is:

• No derivative immigration benefits for your spouse and/or children;
• No path to lawful permanent residence (i.e. a green card); and
• No permission to re-enter the United States after traveling abroad.

In addition, withholding of removal can be more easily revoked should conditions in your home country improve. When granted withholding of removal, you are ordered removed. Withholding of removal only applies to the country which the Immigration Judge designates in his/her decision. This means you may still be removed from the United States to a third country where you do not have a fear of persecution.

Withholding of removal can only be granted by an Immigration Judge. This means withholding of removal is only available as a defense to removal. You also must meet a higher legal standard to establish eligibility for withholding of removal. Withholding of removal will only be granted if you can establish it is “more likely than not” that you will be persecuted if forced to return to your home country.

You cannot be granted withholding of removal if you have:

• Ordered, incited, assisted, or otherwise participated in the persecution of others, because of their race, religion, nationality, political opinion, or membership in a particular social group;
• Have been convicted of a “particularly serious crime” and you pose a danger to the United States;
• Have committed a “serious nonpolitical crime” outside the United States;
• Pose a danger to the United States’s security; and
• Are engaged, have engaged, or are likely to engage in terrorist activity.

Unlike in the asylum context, an aggravated felony conviction does not automatically constitute a “particularly serious crime” unless you were sentenced to a term of imprisonment of 5 years or more. However, the Immigration Judge will assess whether the conviction was for a particularly serious crime by looking at the nature of the crime, circumstances surrounding the crime, sentence imposed, and whether the crime indicates you pose a danger to the community.