Green Card through Asylum

Asylum can be sought after in United States should the individual in question have fear of returning to his or her country. Asylum applicants should become familiar with how to apply for asylum, withholding of removal, the Convention Against Torture (CAT) in the United States, and seeking refugee status if abroad.

To obtain asylum in the United States, the individual must demonstrate a “well-founded fear of persecution” based on any one of the following: (1) political opinion, (2) religion, (3) race, (4) nationality, or (5) membership in a particular social group. Refugees are subject to the same criteria. In fact, the Refugee Act of 1980 binds U.S. immigration laws with a number of United Nations conventions and protocols. It must be noted that the fear of persecution must be either cause by the government of the individual’s country or a group that the government is unable to control.

In some cases, individuals establish “past persecution,” and in doing so raise the presumption that he or she has a well-founded fear of persecution in his or her country. In such cases, it becomes the responsibility of the government to prove that circumstances in the individual’s country have changed and the he or she no longer has a well-founded fear of persecution or that the individual can successfully avoid persecution and reasonably deal with it by moving to another part of his or her country.

If the individual in question is in lawful immigration status in the United States already, he or she can apply for asylum (Form I-589) directly with USCIS. If his or her application is denied, then he or she will remain in status, but if the individual is not in lawful status, then the application will be forwarded to an Immigration Judge.

If an individual is in removal proceedings, he or she may be eligible to apply for withholding of removal and for relief under the Convention Against Torture (CAT). The six elements of torture under CAT are (1) an intentional act, (2) infliction of severe pain or suffering, (3) under the custody or control of the offender, (4) for a broad array or wrongful purposes, (5) by or sanctioned by a public official, and (5) not arising out of lawful sanctions.

In order to be eligible for withholding of removal, the individual must prove that he or she will most likely be persecuted if they return to their country of origin. This calls for a higher possibility of persecution than the one imposed by the “well-founded fear” standard for asylum, which only requires that a person meet at least a 10% chance of being persecuted. In addition, unlike asylum, if you are granted withholding of removal or relief under the Convention Against Torture, it doesn’t mean it will lead you obtaining a green card.

However, if the United States government can prove that the individual has “firmly resettled” in a third country, the person no longer qualifies for asylum, withholding of removal, and CAT.

Lastly, a person usually must apply for asylum within a year after arriving to the United States, but there are–as in other situations– exceptions to this rule.