I can apply only for Withholding of Removal, not Asylum – how do I do that?

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Question:

I came to the U.S. over five years ago, and have been meaning to apply for asylum all this time. But a lot has been happening in my life and I only now feel ready. I just heard there is a one-year deadline after coming to the U.S. to apply for asylum, so I guess that’s not going to help me after all. But it looks like I might, at least, still be eligible for Withholding of Removal. How do I apply for that by itself?

Answer:

First, don’t give up too quickly on the application for asylum. If part of your time in the U.S. was on a valid visa or other status, U.S. Citizenship and Immigration Services (USCIS) may be willing to not count that time against the one-year asylum filing deadline, so long as you apply within a reasonable time of your status ending.

Also, exceptions to the one-year filing deadline exist. USCIS may still consider your asylum case if your delay was due to either extraordinary circumstances or to changed circumstances related to your asylum claim. For details, see “Can I Still Apply for Asylum After the One-Year Filing Deadline?” Talk to an attorney to see whether events in your life or related to your asylum claim might help you fit this standard.

If that doesn’t work out, however, Withholding of Removal does, indeed, remain an option for you. Withholding of Removal is harder to gain approval for than asylum is – you will need to show that it is “more likely than not” that you will face persecution if returned to your country of origin, based on your race, religion, nationality, political opinion, or membership in a particular social group. That’s a higher level of probability than asylum seekers have to show. For details, see “Differences Between Asylum, Withholding of Removal, and Protection Under Convention Against Torture.”

To apply for Withholding of Removal, you use the same form as asylum seekers do – USCIS Form I-589. It’s available as a free download from the USCIS website. Follow the USCIS instructions for submitting it by mail. Be sure to include a personal affidavit, statements from witnesses, and plenty of documentation to show why you face a probability of persecution in your home country.

You will be interviewed by a USCIS asylum officer. If you didn’t apply for asylum, or the asylum officer finds that you don’t qualify for it, the officer does not have the power to grant you withholding of removal. (See the Code of Federal Regulations at 8 C.F.R. 1208.16.) He or she will refer you to immigration court, where you will need to present your withholding of removal case (and asylum case, if you are still pursuing that) to an Immigration Judge, and be questioned by a lawyer for the U.S. government.

It’s best to bring your own lawyer in a case like this – and ideally, to involve a lawyer in your case from the beginning.

If you are granted Withholding of Removal, this will allow you to remain in the U.S. for as long as your country remains dangerous to return to. However, this status does not lead to a green card, nor allow you to obtain status for your family members or travel and return to the United States. See “Your Rights After a Grant of Convention Against Torture Protection or Withholding of Removal” for more information.

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