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Freedom From Persecution

U.S. Immigration Laws:

U.S. immigration laws protect persons fleeing persecution in their home country under the following categories:

  • Refugees
  • Asylees
  • Protection Under Withholding of Removal
  • Protection Under Convention Against Torture

Refugee

Refugee is defined as a person outside his home country and not within the borders of the United States who is unable or unwilling to return to his home country because of persecution or a "well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion." Persecution has to be inflicted by the government officials, public officials or other group of people not able to be stopped by the government, or when the government is not willing to stop persecution.

Asylee

Definition of asylee incorporates the definition of refugee, except asylum seekers are either at the border of the United States or already in the United States seeking protection from persecution in their home country. Asylum applicant needs to prove "past persecution" or "well founded fear" of future persecution based on account of race, religion, nationality, membership in a particular social group or political opinion. The persecution again has to be inflicted by government officials or with their knowledge but with unwillingness to help.

Generally, when the applicant for asylum establishes past persecution there is a rebuttable presumption that he has a well-founded fear of future persecution. This presumption can be rebutted by the Department of Homeland Security only when it can be established that the applicant's home country conditions have changed.

Asylum applicant must file his application within one year of admission to the United States, unless the applicant can show that extraordinary circumstances delayed his timely filing of the application. Moreover, asylum applicants who have persecuted others in the past or have committed certain crimes listed in the Act might not be qualified for asylee status.

Spouses and children of refugees and asylees are given asylee or refugee status upon admission to the United States even when they do not individually qualify as refugees or asylees. Also, an asylee may apply for permanent resident status after one year being in asylee status.

Protection Under Withholding of Removal

The standard under withholding of removal is different from asylum, and it includes the "probability" of harm to the foreign national if he is sent to his home country. In other words, a foreign national can be granted protection under withholding of removal if it can be shown that his life will more likely be threatened on account of race, religion, nationality, membership in a particular social group or political opinion.

Protection under withholding of removal is not limited to filing an application within 1 year as in asylum cases, and the person seeking protection under withholding of removal can seek relief anytime. As in cases of asylum, applicants who have been convicted of serious crimes, or who have persecuted others may not be eligible for protection under withholding of removal. However, unlike asylees, persons granted withholding of removal are not eligible for permanent resident status and are subject to only protection by the United States.

Convention Against Torture (CAT)

Foreign nationals will be given protection in the United States based on Article 3 of Convention Against Torture who can prove that they will more likely than not be tortured by government officials if they are to return to their home country.

According to 8 C.F.R. Section 208.18(a)(1) "torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."

Persons granted protection under Convention against torture cannot adjust to a lawful permanent resident status. On the other hand, applicants not eligible for asylum or withholding of removal may be eligible for protection under CAT.

 

Disclosure

We do not represent the Department of Homeland Security or any legal entity. All content on this site is strictly for informational purposes meant to help you make an informed decision regarding you, or your loved ones immigration to the U.S. Be sure to consult our immigration attorney for any legal advice.

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