Useful Resources Involving Immigration Law
You qualify for asylum if you have been persecuted or have a “well-founded fear of persecution” in your country based on (1) political opinion, (2) religion, (3) race, (4) nationality, or (5) membership in a particular social group.
Asylum, Withholding of Removal, and U.N. Convention Against Torture Protection
Under U.S. immigration law, refugees who fear harm in their home country can request asylum as well as two other related forms of protection from an immigration judge: withholding of removal (INA § 241(b)(3)) or protection under the U.N. Convention Against Torture (8 C.F.R. §§ 208.16–208.18)—an international treaty banning torture, which the U.S. ratified in 1994.
- Asylum: To be granted asylum in the United States, an applicant must show the he or she meets the definition of a “refugee” under the Immigration and Nationality Act (INA) and that none of the bars to asylum in U.S. law apply. A refugee is defined as a person outside of his or her country who cannot return home because that person was persecuted or fears persecution because on account of his or her race, religion, nationality, political opinion, or membership in a particular social group. The U.S. Supreme Court has said that this fear may be well-founded where there is as little as a 10% chance of persecution.
- Withholding of Removal: This form of protection has stricter requirements than asylum. Withholding of removal protects only those refugees who can show that they would face a more than 50% chance of persecution on account of one of the protected grounds (race, religion, nationality, political opinion or group membership) if returned to their country. While some of the bars to asylum, such as the one-year-filing deadline, do not apply to withholding of removal claims, the standard to qualify is more stringent.
- Convention Against Torture: Protection from deportation under CAT is limited because it protects only people who fear torture—an even more severe harm than persecution. A person seeking CAT protection must establish a more than 50% chance that he or she would be tortured if returned to their home country. The applicant does not have to show the torture would be on account of a protected ground but must prove that government authorities would be responsible for the torture or would know about the torture and allow others to carry it out.
On January 3, 2013, the Department of Homeland Security published a regulation allowing immediate family members of U.S. citizens who entered the U.S. without inspection, or are otherwise ineligible to adjust their status in the U.S. due to unlawful presence, to apply for an I-601A waiver in the United States. Once their waivers are approved by the USCIS, they will be eligible to attend their green card appointments in their countries of origin.
The aim of this new program, which became effective on March 4, 2013, is to avoid having spouses and sons and daughters of U. S. Citizens be separated from their families for months or even years while their waivers are pending.
Now, these family members will obtain their waivers before departing the U.S., will be interviewed abroad, and will then return to their families in the U.S. within just a few days or weeks.
It is important to know who is eligible to submit a provisional waiver, what happens if a person’s waiver is denied and how to qualify for this program if you are in removal proceedings.
If you are inadmissible to the United States and are seeking an immigrant visa, adjustment of status, certain nonimmigrant statuses, or certain other immigration benefits, you must file this form to seek a waiver of certain grounds of inadmissibility.
Cancellation of Removal for Permanent Residents
If you meet each of the following conditions:
- You have been a lawful permanent resident of the US for at least 5 years;
- You have resided continuously in the US for a minimum of 7 years after being admitted to the US. in any status (prior to the institution of removal proceedings);
- You have not been convicted of an aggravated felony; and
- You are not inadmissible from the US on security grounds.
In order to be granted cancellation of removal for permanent residents, you must be able to convince the Immigration Judge that the positive factors in your case outweigh the negative factors.
Cancellation of Removal for non-LPRs
If you have been placed in removal proceedings and you have resided in the US for 10 years or more, you may be eligible to apply for a green card through Cancellation of Removal for non-LPRs before an Immigration Judge.
To win your case, you must satisfy each of the following conditions:
- You have been physically present in the U.S. for a continuous period of ten years prior to the institution of removal proceedings. (This requirement is not applicable if you have served a minimum of 24 months in the U.S. Armed Forces, were present in the U.S. during your enlistment or induction, and are either serving honorably or have received an honorable discharge.) “Continuous” means that you cannot be out of the U.S. for more than 90 days at a time, or 180 days in the aggregate, during the ten-year period.
- You have been a person of good moral character for ten years;
- You are not inadmissible under §212(a)(2) or (3) (criminal and security grounds) or deportable under §237(a)(1)(G) (marriage fraud), (2) (criminal grounds), (3) (failure to register and falsification of documents) or (4) (security and related grounds).
- Your removal would result in exceptional and extremely unusual hardship to your spouse, parent, or child, who is a citizen of the United States or a lawful permanent resident.