Apart from asylum, persons who are undergoing removal/deportation proceedings can also raise two other defenses: withholding of removal, and the Convention Against Torture (CAT). A person can raise either or both defenses using the USCIS's Form I-589.   Withholding of removal A person can succeed on a withholding of removal defense is she can demonstrate it is more likely than not she will suffer future persecution upon returning to her home country due to her race, religion, nationality, membership in a particular social group, or political opinion. The applicant would be required to show a greater than 50 percent chance...

By: Karlo I. J. Dizon, Esq. The Immigration and Nationality Act defines “refugee” with reference to persons who have no nationality, or in other words, persons who are considered stateless. See INA §101(a)(42)(A); 8 USC §1101(a)(42)(A) (referring to “any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided”). Asylum regulations defining persecution also specifically refer to stateless applicants. See 8 CFR §208.13. This article explains statelessness in the context of asylum law.   Statelessness alone does not warrant...

By: Karlo I. J. Dizon, Esq. United States law gives the U.S. Attorney General, the Secretary of the Department of Homeland Security, and DHS officials1 the discretion to grant asylum to a person who meets the statutory definition of “refugee,” so long as that person meets other eligibility factors. As we mentioned in another post, refugee and asylee applicants bear the burden2 of proving they meet the definition and those factors. Future posts will discuss the nature of that burden. The INA defines “refugee” as: ny person who is outside any country of such person’s nationality or, in the case...

By: Karlo I. J. Dizon, Esq. Individuals seeking U.S. protection from persecution or a well-founded threat of persecution in another country can apply as a refugee, if applying from outside the U.S., or as an asylee, if applying while within U.S. borders. This article explains some basic information about applying from outside the U.S. through the United States Refugee Admissions Program (USRAP).   The USRAP Individuals can gain refugee status through USRAP first by being identified and referred by any of the following entities: the United Nations High Commissioner for Refugees (UNHCR), the body under the UN which we discussed...

By: Karlo I. J. Dizon, Esq. Our previous post discussed how the Illegal Immigration Reform And Immigrant Responsibility Act of 1996 (IIRIRA) set out the most significant revisions to U.S. asylum law since the Refugee Act of 1980. This post describes three other statutes that shape U.S. asylum law: the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act); the Real ID Act of 2005; and the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA).   The USA PATRIOT Act Congress enacted the USA PATRIOT Act six weeks after the terrorrist attacks...

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which took effect on April 1, 1997, included the most significant amendments to U.S. asylum law since the Refugee Act of 1980. Among its major provisions pertaining to asylum, the IIRIRA: (1) updated the definition of 'refugee'; (2) updated the provision on non-refoulement, or withholding of deportation; (3) enacted new bars to eligibility for asylum; and (2) enacted a new expedited process for removal. Many asylum proponents have seen the IIRIRA as Congress's reaction to a wave of anti-immigrant sentiment, reflected in provisions that directly weakened protections to asylum-seekers....

The Refugee Act of 1980 established the modern approach to asylum law still effective in the United States today. As the U.S. Supreme Court clarified, one of the Act's purposes was to bring U.S. law in conformance with the 1967 UN Protocol. See Immigration and Naturalization Service v. Cardoza-Fonseca, 480 U.S. 421, 436 (1987) (“If one thing is clear from the legislative history of the ... definition of ‘refugee,’ and indeed the entire 1980 Act, it is that one of Congress’ primary purposes was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to...

Courts in the United States still consider the 1967 Protocol Relating to the Status of Refugees (1967 UN Protocol), and the UN Handbook that explains it, as persuasive guidance when considering certain domestic principles of asylum law. In another post, we described how the 1951 UN Convention established certain definitions and provisions (i.e., Articles 2 to 34), which the 1967 UN Protocol incorporated. The U.S. eventually signed the 1967 UN Protocol in 1968. Before the 1967 UN Protocol Before the U.S. signed the 1967 UN Pro­tocol, Section 243(h) of the Immigration and Naturalization Act of 1952 (INA § 243(h)) served...

Asylum law in the United States can be traced to the United Nations in 1950 through Resolution 428(V), as another post describes. That Resolution established the UNHCR. It also expressed the policy priorities the UN expected from its member states concerning the protection of refugees. The following year, in 1951, the UN's member states—including the United States—entered the Convention Relating to the Status of Refugees (1951 UN Convention). This post takes a look at that agreement, and how it served as a foundation for subsequent domestic U.S. legislation on asylum.   Background The 1951 UN Convention came into force on...

By: Karlo I. J. Dizon, Esq. The U.S. law on asylum can be traced back to developments in international law after World War II. Today, international sources might still be relevant—U.S. courts and executive agencies like the Executive Office for Immigration Review (EOIR) and U.S. Citizenship and Immigration Services (USCIS) might consider international sources for guidance on how to interpret local statutes. Some courts also assign international sources some interpretive weight. This article examines two international frameworks—the UN's Resolution 428(V), and the Convention Relating to the Status of Refugees in 1951 (1951 UN Convention)—which informed the asylum legislation eventually passed...