Being granted asylum in the United States is the most advantageous result for aliens who fled to the US due to the persecution in their home country. However, for a number of legal reasons, not everyone who qualifies for asylum can actually receive it. For those who expect to face torture if deported to their countries of origin, withholding of removal provides a viable alternative to asylum. It gives them the opportunity to live a full normal life in the United States on a long-term basis.
Grants of asylum are given to non-citizens who fear being deported to their country of origin because of fear of persecution or because they have suffered persecution there in the past. If aliens apply for asylum before being detained by Immigration and Customs Enforcement (ICE), asylum can be granted by the asylum office. If the asylum office does not feel he has enough evidence that asylum should be granted, the case will be transferred to the immigration court to be argued in front of the judge. Aliens who were detained by ICE before they applied for asylum, go directly to immigration court and later into the appeals process if applicable.
Once asylum is granted, the alien is given the right to apply for work authorization and has a path to permanent residency. Spouse and dependents listed on the asylum application receive the same rights. Though this is desirable, not everyone who fears persecution in their home country is eligible to apply.
First, aliens are barred from seeking asylum if they have been in the United States for over one year before they applied for asylum without any justification. Aliens are also barred if they resettled in another country prior to coming to the United States. Individuals with certain criminal histories or who are considered a security threat to the United States are also ineligible. Also, people who have participated themselves in persecution of others based on the five categories required for asylum may not apply for asylum. The question of whether a person is ineligible to apply for asylum can be complicated, so an experienced immigration lawyer should always be consulted.
When asylum cannot be granted, a good immigration attorney focuses on winning a withholding-of-removal order for the client. In order to qualify, the petitioner must convince the court that he or she faces a likelihood of torture if returned to the home country. Unlike asylum, where persecution must be based on five characteristics, a withholding-of-removal order is granted if torture is a prospect for any reason.
Withholding orders can also be granted to individuals with criminal histories, who present a threat to the U.S. (though they may be held in detention), who have been in the U.S. for over a year, or who have participated in persecution. Recipients of these orders can be eligible to work in the U.S. Unlike asylum, they are not permanent. If torture becomes unlikely, they may be lifted.
Aliens who received a withholding of removal, can remain in the U.S., but can never apply for a green card, they must extend their employment authorization every year, they cannot travel outside the US since it would be considered a self-deportation and they cannot apply for any other benefits in the US. Withholding of removal aims to give protection to the people who are more likely than not to be persecuted in their home countries, but it does not grant an extensive list of benefits as an asylum status provides. These people remain inadmissible in the US for the purpose of applying for other benefits. However, it is still a viable option for those who are not qualify for asylum for certain legal reasons.
