INTRODUCTION
Any non-citizen can file for asylum, withholding and protection under the Convention Against Torture. If you are not in removal proceedings, you can affirmatively apply for asylum with USCIS. If you are in removal proceedings, it is called a defensive asylum application.
Certain crimes can make you ineligible for asylum and withholding of removal. However, no matter what, everyone and anyone can apply for protection under the Convention Against Torture, which is a treaty that the United States signed stating that the government would not deport anyone who would be subject to torture upon return to his or her home country.
Asylum, Withholding of removal, and protections under the Convention Against Torture
If you have been suffered past persecution in your home country or country of last habitual residence, or because you have a well-founded fear of future persecution in your home country or country of last habitual residence and such persecution is based on race, religion, nationality, political opinion or membership in a particular social group, you may be eligible for asylum and/or withholding of removal. Persecution can take many forms of abuse, but typically encompasses torture, physical abuse, imprisonment, beatings, etc.
You must apply for asylum within one year of your entry into the United States. There are exceptions, but they are very limited. If you did not apply for asylum within the one year deadline, you can still apply for withholding of removal and/or CAT protection.
If you will be subject to torture upon return to your home country, you can seek protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. For refugees and asylum seekers, this is a relief of last resort, but not insignificant.
With asylum, you can eventually get a green card. Withholding and CAT protection will permit you to remain in the United States and get a work authorization, but you cannot get any further benefits.
Gang based Asylum
Gang based asylum, asylum based on persecution by transnational violent street gangs, is very difficult to get. However, the firm specializes is gang-based asylum claims. Because each case is different, a consultation is necessary to determine whether you have a meritorious asylum claim.
Related Cases
Citizen of Guatemala wins political asylum reversal from the Board of Immigration Appeals based on a claim of persecution for exposing political corruption in her home country
September 4, 2019
Facts: In September of 2016, a citizen of Guatemala came to the firm seeking help to apply for asylum.
The Firm’s Representation: Our client was the victim of death threats after she tried to expose political corruption in her home town in Guatemala. The firm believed that our client had a strong case for asylum based on persecution on account of her anti-corruption political opinion. At trial, the government conceded that our client merited withholding of removal, but opposed a grant of asylum. After taking testimony from our client, the immigration judge adhered to the government’s position and granted withholding of removal but denied the application for asylum. The firm quickly convinced our client to appeal to the Board of Immigration Appeals.
Outcome: On September 4, 2019, the Board of Immigration Appeals reversed the decision of the immigration judge finding that our client had indeed met her burden to demonstrate that she was the victim of past persecution on account of her anti-corruption political opinion and remanded the case to make findings, if any, that the country conditions in Guatemala have changed to such an extent that would rebut a presumption of future persecution.
Comments: This was an odd case because our client had what seemed like a very strong asylum claim based on exposing political corruption in her country and the firm was perplexed when the immigration judge denied the claim. Thankfully, the Board of Immigration Appeal recognized the strength of our client’s claim and reversed the immigration judge’s decision.
Citizen of El Salvador is granted asylum after the case was remanded from the Fourth Circuit and the Board of Immigration Appeals
July 18, 2019
Facts: In August 2014, a citizen of El Salvador came to the firm seeking help with his asylum case in the Baltimore Immigration Court.
The Firm’s Representation: The firm believed that our client had a good claim of asylum based on a fear of persecution on account of an imputed political opinion where the persecutor was motivated by mixed motives of local politics and financial gain. Unfortunately, the Immigration Judge denied our client’s asylum application in November 2015. The firm advised our client to continue to fight for his rights and the Immigration Judge’s decision was appealed to the Board of Immigration Appeals. Unfortunately, in November of 2016, the Board of Immigration Appeals denied our client’s asylum claim once again. Down but not done, the firm convinced our client to file a petition for review in the U.S. Court of Appeals for the Fourth Circuit.
Outcome: On June 6, 2017, the Fourth Circuit remanded our client’s case back to the Board of Immigration Appeals to re-consider our client’s direct appeal in light of the Fourth’s Circuit line of mixed-motive asylum case law. On September 28, 2017, our client’s case was remanded from the Board of Immigration Appeal back to the Baltimore Immigration Court. On July 18, 2019, our client was granted asylum.
Comments: The firm has won many cases on or after appeal. It may seem pointless to continue with your case in the face of repeated setbacks. But, the firm prides itself on fighting for our clients’ rights, no matter how long and how far, when we believe in merits of our clients’ cases. Here, our client received asylum and his wife and children were able to apply for asylum as derivatives.
El Salvadoran refugees of gang violence granted asylum
February 22, 2016
Facts: In 2013, a citizen of El Salvador and her child and her brother came to the firm seeking help.
The Firm’s Representation: Our client’s partner testified against gang members at a murder trial in El Salvador. Prior to the trial, the gang members tried to intimidate the witness by threatening the witness’ girlfriend (our client), and her child and her brother. The El Salvador police could not protect our client or her family and as a result they fled El Salvador and came to the United States looking for safe refuge. In jurisdiction of the Federal Court of Appeals for the Fourth Circuit, which includes the Baltimore Immigration Court, family members who have been threatened or harmed merely because of their social status as family members are an asylum-based protected group. Here, our client and her child and her brother were threatened by gangs for no other reason than their familial relationship to the witness (our client’s partner), which is a recognized social group under Fourth Circuit case law.
Outcome: On February 22, 2016, our client, her son, and her brother were all granted asylum protection in the Baltimore Immigration Court.
Citizen of Sierra Leone wins CAT protection based on sexual orientation despite three “aggravated felony” convictions
March 11, 2013
Facts: A citizen of Sierra Leone was placed in removal proceedings and charged as an “aggravated felon.” His family came to the firm for help.
The Firm’s Representation: The firm took our client’s case and discovered that our client had a viable claim under the Convention Against Torture (CAT). The firm asserted that our client would be harmed in his home country of Sierra Leone based on his sexual orientation.
Outcome: Based on the firm’s extensive documentation and testimony from an country conditions expert, on March 11, 2013, the Immigration Judge granted our client CAT protection. Our client is awaiting a decision by DHS whether to appeal the case to the Board of Immigration Appeals.