Does a Prior Deportation Prevent Me From Applying for Asylum?

You cannot apply for asylum with a deportation order on your record, but you can apply for something that is very close.

Question

I was in the United States before, but the immigration police picked me up and then a judge deported me. But now I have come back (illegally) and want to apply for asylum. Will my prior deportation stop me from asking for asylum?

Answer

The short answer is that you cannot apply for asylum with a deportation order on your record, but you can apply for something that is very close. Let’s explore this a little more.

A prior deportation order is still valid when you attempt to enter the United States or if you have returned illegally. The U.S. government can simply "reinstate" the removal order, and then deport you a second time, without giving you a hearing in front of a judge.

This can happen even if, while you are in the U.S., you attempt to file an affirmative asylum application with USCIS. The office that receives your application will refer it to the immigration police who will reinstate the prior removal order.

But under international law, the United States cannot remove people to a place where they would suffer persecution. This is called the principle of non-refoulement, and is the underlying principle behind the laws that provide asylum and refuge status around the world. Each government interprets this requirement in slightly different ways.

In the U.S., this requirement means that even people who have been deported or committed a crime that makes them ineligible for asylum, can still apply for something called withholding of removal or immigration relief under the Convention Against Torture (CAT) (another international law that prevents the government from sending anyone to a place where they would be tortured).

Standards for Withholding of Removal and CAT Relief

The standards for withholding of removal are much the same as for asylum except it requires a higher burden of proof—you have to prove to a judge or decision maker that it is more likely than not that you will suffer persecution if returned to your home country (asylum requires only showing that there is a ‘reasonable possibility’ that you would be persecuted).

In practice, this is quite a high standard. You have to convince the judge that it is very likely you will suffer actual persecution. This usually means you would need lots of evidence showing that you have been individually targeted for harm by the government of your country or by people who the government cannot control.

How to Apply for Withholding of Removal or CAT

Starting the application process always looks different depending on where the applicant is, for example:

  • People coming to the U.S. to seek protection can approach the border guards and tell them that they are afraid to go back to the home country because of persecution. This may end up with the applicants staying in Mexico while the claim is pending, under current U.S. government policies.
  • People already in immigration custody can communicate (in writing is best) to the detention officers that they are afraid to return to the home country and ask for a reasonable fear interview.

If you are inside the U.S. but not currently in removal proceedings, there is no reason to try to apply for withholding of removal. Instead, you should consult with an immigration attorney to see whether you can reopen your old order of deportation (more on this below).

If you are at the border or in detention, then, once the border officer or the detention officer finds out that you are afraid to return to your country, he or she should refer you to what is called a reasonable fear interview. During this interview, an immigration officer will ask you lots of questions about why you are afraid to go back to your country. In order for your case to go before an immigration judge, you have to convince the immigration officer that you could probably show a judge that it is more likely than not you would be persecuted.

Once your case is in the immigration court, you will put on a full case for withholding of removal, and for relief under the CAT. You should present witnesses, documents, and testimony to show the judge that you are afraid of returning to your country because of a well-founded fear of persecution on one of the five grounds required for asylum. (See Asylum or Refugee Status: Who Is Eligible? and Preparing Persuasive Documents for Your Asylum Application for details.)

If the judge approves your application for either Withholding of Removal or relief under CAT, then you will be able to stay in the United States. Neither status is permanent, however, and unlike asylum, you will not be able to apply for a green card as a subsequent step.

This is why it is important, if you have the time and opportunity, to see if there is a way to reopen your order of deportation—that is, turn back the clock so that your removal case is no longer closed and final. For this, you should consult with an attorney, as the reopening of an order of deportation is extremely complicated and can involve filing documents with several different courts.

If you are able to reopen the case, you will be able to file for asylum, which is a permanent status that will allow you to get a green card and eventually apply for citizenship. The good news is, one of the bases for filing a motion to reopen is to file for asylum, as long as it is because the conditions in your country have changed since the order of deportation was issued.

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