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Political Asylum, CAT, Withholding of Removal

Political Asylum
Is a form of protection that allows individuals who are in the United States to remain here, if they have been persecuted in the past or have a well founded fear of persecution in his or her home country based on race, religion, nationality, political opinion or membership in a particular social group.  Asylum applicants may apply for asylum even if he or she entered the US illegally or if he or she is in the US on an expired visa/I-94. Generally, asylum applicants must apply for asylum within one year of their arrival in the US but there are several exceptions which will allow the filing of an asylum application after one year.

This can be further discussed with attorney Carlos Sandoval in your consultation. Foreign nationals in the US who are unable or unwilling to return to their home country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, or membership in a particular social or political group. The burden of proof is on the applicant for asylum to establish that he has a credible fear of persecution. The applicant may qualify as a refugee either because he has suffered past persecution or because he has a well-founded fear of future persecution.  An applicant shall be found to qualify on the basis of past persecution if he can establish that he has suffered persecution in the past in his country of nationality or last habitual residence on account of race, religion, nationality, membership in a particular social group, or political opinion, and that he is unable or unwilling to return to or avail himself of the protection of that country owing to such persecution.  An applicant shall be found to have a well-founded fear of persecution if he can establish first, that he has a fear of persecution in his country of nationality or last habitual residence on account of race, religion, nationality, membership in a particular social group, or political opinion; second, that there is a reasonable possibility of suffering such persecution if he were to return to that country; and third, that he or she is unable or unwilling to return to or avail himself self of the protection of that country because of such fear.

Relief Under Convention Against Torture (CAT)
The Convention Against Torture (CAT) provides relief from removal for individuals who fear they will be tortured at the hands of the government within their country, or other entity’s who have authority from that government to conduct such acts. Relief under Convention Against Torture can provide relief to individuals who are not eligible for asylum or Withholding of Removal because they fail to fall into one of the five categories of bases for persecution: race, religion, nationality, political opinion, or membership in a particular social group. Relief may also be sought by individuals who are not eligible for asylum or Withholding of Removal because of their criminal history or other factors at times as well. Attorney Carlos Sandoval will inform the client if this form of relief can be sought out in the individual’s particular case. Bellow you will see some of the requirements that need to be mat as well as the definition of torture within the lines of this type of application.

Each Applicant for Convention Against Torture relief must establish that:

  • It is more likely than not.
  • That s/he would be subject to torture.
  • Inflicted by, at the instigation of, or with the consent or acquiescence of.
  • A public official or other person acting in an official capacity.

Defining torture for the purposes of eligibility for the CAT Application is as follows:

Torture is referred to any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as:

  • Obtaining a confession;
  • Punishment for commission or suspicion of commission of an offense;
  • Intimidation or coercion, or;
  • For any reason based on discrimination of any kind

Withholding of Removal
Withholding or Removal is a status similar to asylum, but not as protected. Individuals who win this type of case are granted the right to remain in the United States and are eligible to work legally. Unlike the individuals whom are protected under asylum, people with withholding of removal do not have the right to apply for legal permanent residence. People whom tend to apply for withholding of removals have a final order of removal against them.

If the individual ever travels outside the United States, they will not be permitted to enter the US once again. As with asylum, a withholding of removal application must be based on fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The standard for withholding removal is typically higher than for asylum. To be successful at obtaining asylum, an applicant must show fear and to successfully obtain a withholding of removal order the applicant must demonstrate that he or she is more likely than not to face persecution if returned to their country of origin. The main benefit of applying for this type of relief is so that the alien may be permitted to remain in the United States. Ability to obtain legal employment authorization and to receive most of the same government benefits as individuals whom sought out asylum.

 

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