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, or attempt to open your deportation case.

By , Attorney · University of Cincinnati College of Law

If you were previously in the United States as a foreign national but got deported, and then you came back illegally and want to apply for asylum because you fear persecution in your home country, you unfortunately cannot do so in any direct fashion. Other, lesser forms of relief might help you, as discussed in this article. Or, you might be able to reopen your deportation case.

Why Prior Deportation Blocks Asking for Asylum

If you're been deported from the United States, there's a "deportation order" in your immigration file. That prior deportation order is still valid if and when you attempt to enter the United States or return to it 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 an immigration judge. Thus you would have no opportunity to request asylum.

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

International Law Still Tries to Protect People From Persecution

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 refugee status around the world. Each government interprets this requirement in slightly different ways.

In the United States, 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 else 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). We'll take a closer look at these options next.

Standards for Withholding of Removal and CAT Relief

The standards for being granted withholding of removal are much the same as for asylum except that approval 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 United States to seek protection can make an appointment with border officials and tell them that they are afraid to go back to the home country because of persecution. This typically requires applicants to stay in Mexico while the claim is pending.
  • People already in immigration custody can communicate (in writing is best) to the immigration detention officers that they are afraid to return to the home country and ask for a reasonable fear interview.

If you are inside the United States but not currently in removal proceedings (in immigration court), 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 you have the chance to be referred for what is called a credible fear interview and then to go before an immigration judge. Once your case is in the immigration court, you will need to 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 immigration 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.

Another Possibility: Reopen Your Deportation Case

If you have the time and opportunity, it's worth seeing whether 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.

Getting Legal Help

With high stakes if you fear persecution, and complicating factors like a past deportation, you'll really want to find a good attorney. Fortunately, asylum is an area where you'll find a lot of help from volunteer attorneys or nonprofit (charitable) organizations serving immigrants and refugees.

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