Asylum & Humanitarian Relief

Asylum Overview

Asylum is a form of immigration relief that may be granted to a noncitizen who has a fear of returning to their home country.  With limited exceptions, any noncitizen who is physically present in the United States and who possesses such a fear is eligible to apply.  A noncitizen can apply for asylum whether they are in the U.S. legally or illegally. 

In order to be approved for asylum, the noncitizen must establish that they are unable or unwilling to return to their home country because of persecution that they have suffered in the past, or a because they have a “well-founded fear” being persecuted in the future.  Moreover, they must demonstrate that this feared persecution is connected to a “protected ground.”  The five protected grounds are: 

  • Race
  • Religion
  • Nationality
  • Political opinion
  • Membership in a particular social group

A successful asylum applicant, known as an asylee, is allowed to remain in the United States indefinitely. They can apply for a work permit, travel abroad with certain restrictions, petition to bring family members to the U.S., and may apply for permanent residence (a green card) one year after being granted asylum.

Particular Social Group, Explained

The term "particular social group" isn't explicitly defined in the law, leading to varying interpretations in court decisions. Typically, a "particular social group" refers to people who share a common characteristic that is so fundamental to their identity that they should not be required to change it. The group must be recognized within society as a distinct entity.

This common characteristic might include aspects such as sex, color, kinship ties, or in some circumstances, shared past experiences. Examples of these groups might include, but are not limited to, family members of dissidents, ethnic or tribal subgroups, social classes, or people identified by their sexual orientation or gender identity.

One-Year Filing Deadline

Generally, a person must apply for asylum within one year of arriving in the U.S. There are exceptions to this rule such as changed circumstances that affect a person’s eligibility for asylum or extraordinary circumstances that prevented the applicant from filing within the one-year deadline.

Ineligibility for Asylum

A person is ineligible for asylum if any of the following apply: 

  • Ordered Removed or Reinstated Removal: Have been previously ordered removed from the U.S. in an expedited removal proceeding and then illegally reentered the U.S.
  • Safe Third Country: Could be removed to a safe third country pursuant to a bilateral or multilateral agreement. For example, migrants entering the U.S. through Canada or vice versa are usually required to apply for asylum in the first of these countries they enter.
  • Persecutor of Others: Have persecuted others on account of race, religion, nationality, membership in a particular social group, or political opinion.
  • Resettled in another country: Have firmly resettled in another country prior to arriving in the U.S.
  • Serious Criminal Activity: Certain criminal-related bars can prevent an individual from receiving asylum, including having been convicted of a particularly serious crime or having committed a serious nonpolitical crime outside the U.S.
  • Failure to File for Asylum within one year, and No Exceptions to this Rule Apply

Withholding of Removal

If a person is not eligible for asylum, they may still be eligible for a related form of immigration relief called Withholding of Removal.  While both asylum and withholding of removal are forms of protection available to individuals fearing persecution in their home countries, they have different eligibility criteria and offer different benefits.

Withholding of removal requires a higher standard of proof than asylum. Applicants must demonstrate that it is more likely than not (>50% chance) that their life or freedom would be threatened in their home country on account of race, religion, nationality, membership in a particular social group, or political opinion.

Unlike asylum, withholding of removal does not lead to permanent residence in the U.S. It simply prohibits the U.S. government from deporting an individual to a particular country. Individuals granted withholding of removal can apply for a work permit but cannot travel internationally and return to the U.S., and they cannot petition for family members to join them in the U.S.

In general, individuals often apply for both asylum and withholding of removal at the same time. If an individual is not eligible for asylum, the immigration judge will then consider whether they are eligible for withholding of removal.

Convention Against Torture (CAT)

Under U.S. immigration law, protections exist for immigrants who may face torture in their home countries. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) is an international human rights treaty that is intended to prevent torture and cruel, inhumane, and degrading treatment or punishment around the world. The United States has ratified this treaty and incorporated it into U.S. immigration law.

Under U.S. immigration law, CAT protections prohibit the return of an individual to a country where there are substantial grounds for believing the person would be in danger of being tortured. There are two types of protection under CAT: withholding of removal and deferral of removal.

  • Withholding of Removal under CAT: A foreign national may be granted Withholding of Removal under CAT if they can demonstrate that it is "more likely than not" that they would be tortured if removed to a proposed country. If granted, the person is protected from removal to the specific country where they fear torture. However, this status doesn't grant any particular immigration status in the U.S., and the government may seek to remove the person to a third country where they would not face a risk of torture.
  • Deferral of Removal under CAT: This protection is for those who don't qualify for asylum or withholding of removal but would likely be tortured if returned to their home country. A grant of deferral of removal under CAT provides temporary protection from removal to the country where the individual would more likely than not face torture. This deferral can be terminated if the U.S. government finds that the person no longer faces a risk of torture in their home country.

It's important to note that unlike asylum, protections under CAT cannot be denied based on the person's criminal history or based on certain bars to asylum, such as persecution of others, conviction of particularly serious crime, commission of a serious non-political crime outside the United States, or danger to the security of the United States.

Temporary Protected Status

Temporary Protected Status (TPS) is a temporary immigration status provided to nationals of certain countries experiencing problems that make it difficult or unsafe for their nationals to be deported there. This could be due to conditions like an ongoing armed conflict (such as civil war or military invasion), an environmental disaster (such as earthquake or hurricane), an epidemic, or other extraordinary and temporary conditions.

The U.S. Secretary of Homeland Security may designate a country for TPS, and during the period for which a country has been designated for TPS, TPS beneficiaries:

  • Are not removable from the United States.
  • Can obtain an employment authorization document (EAD).
  • May be granted travel authorization.

However, TPS does not lead to permanent resident status (a green card). When the Secretary terminates a TPS designation, beneficiaries return to the same immigration status they maintained before TPS (unless that status has since expired or been terminated) or to any other status they may have acquired while registered for TPS.

The countries designated for TPS include El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria, Ukraine, and Yemen. This list may have changed, so please check the latest updates from the U.S. Citizenship and Immigration Services (USCIS) for the most current information.

Deferred Enforced Departure

Deferred Enforced Departure (DED) is in the President’s discretion to authorize as part of his power to conduct foreign relations. Although DED is not a specific immigration status, individuals covered by DED are not subject to removal from the United States, usually for a designated period of time. 

Temporary Protected Status & Deferred Enforced Departure have been granted to the following designated countries:

  • Liberia
  • El Salvador
  • Guinea
  • Haiti
  • Hong Kong
  • Liberia
  • Nicaragua
  • Sierra Leone
  • Somalia
  • Sudan
  • South Sudan
  • Syria

For dates of Temporary Protected Status and details about each nation’s status, visit the USCIS website. For information and assistance, contact Immigration Solutions LLC.

Humanitarian Parole

Humanitarian Parole is an option of last resort that can grant temporary immigration relief to individuals in emergency situations.  There are two distinct kinds of humanitarian parole, the first for individuals filing from outside the United States, the second for individuals who are in the United States and who are in removal proceedings

Applicants filing for Humanitarian Parole from outside the United States can submit their requests either to U.S.C.I.S. or, if the individuals is at a point of entry to the United States, to Customs and Border Protection.  Applicants for Humanitarian Parole are essentially asking to be let in to the United States without a visa, and, as such, should only request humanitarian parole when an application for a visa has been denied or when the individual would be ineligible for any type of visa. 

U.S.C.I.S may grant parole temporarily:

  • To anyone applying for admission into the United States based on urgent humanitarian reasons or if there is a significant public benefit; and
  • For a period of time that corresponds with the length of the emergency or humanitarian situation.

Applications for Humanitarian Parole will only be approved if the applicant can demonstrate a “compelling” need to enter the United States.  Examples of such “compelling” reasons include situations in which the applicant has a relative in the US who is facing a risk of imminent death, or situations in which the applicant needs medical treatment in the U.S. and is not able to obtain it in his or her home country.  Parole is usually granted for the duration of the emergency situation. 

Applicants who are inside the United States and in Removal Proceedings can file requests for Humanitarian Parole with Immigration Customs Enforcement (ICE).  Unlike filing from outside the United States, applicants filing for parole from inside the United States must show that granting parole would result in a “significant public benefit” to the United States.  This form of relief is most commonly used when the individual is a person of law enforcement interest, such as the witness in a criminal case.  If granted, the request can provide a temporary form of lawful status. 

In either case, Humanitarian Parole is entirely discretionary, and denials of requests for Humanitarian Parole cannot be appealed. Parolees must depart the United States before the expiration of their parole.  A request for re-parole can be submitted and it must be approved by U.S.C.I.S.  Humanitarian Parole does not grant any immigration benefits.

Requirements for Parole

  • Anyone can file an application for humanitarian parole.
  • You may file an application for parole if you cannot obtain the necessary admission documents from the Department of State.

You cannot use parole to avoid normal visa-issuing procedures or to bypass immigration procedures. As noted above, there must be an urgent humanitarian reason or significant public benefit for the parole to be granted.