Provisional Unlawful Presence Waiver

Introduction to Provisional Unlawful Presence Waivers

The provisional unlawful presence waiver was originally created in regulations in 2013.  A new provisional unlawful presence waiver final rule will take effect on August 29, 2016.  The new rule will generally broaden the number of people who will be able to seek and be granted provisional unlawful presence waivers.  This article will examine the new regulatory scheme.

The provisional unlawful presence waiver allows for certain beneficiaries of approved immigrant visa petitions to apply for a provisional unlawful presence waiver before proceeding abroad to apply for an immigrant visa through the Department of State (DOS).  A provisional unlawful presence waiver only applies to inadmissibility under section 212(a)(9)(B)(i) of the Immigration and Nationality Act (INA) for the 3- and 10-year unlawful presence bars.  It does not provisionally waive any other ground of inadmissibility.

The concept of the waiver is that, if approved, it may greatly shorten the visa application process for a waiver beneficiary and help promote family unity.  It is important to note that the granting of a provisional unlawful presence waiver still requires an alien to proceed abroad to seek a visa from the DOS.  An alien who is granted a provisional unlawful presence waiver will not be eligible for adjustment of status.

Furthermore, if the beneficiary of a provisional unlawful presence waiver is found to be ineligible for an immigrant visa for reasons other than for being subject to a 3- or 10-year bar of inadmissibility, the provisional unlawful presence waiver will become moot and the applicant would have to apply for a waiver of the unlawful presence bar from overseas.

Eligibility for Provisional Unlawful Presence Waivers

First, an alien must be the beneficiary of an approved immigrant visa petition in one of the following categories:

• Family-sponsored;
• Employment-based; or
• Diversity visa.

Secondly, the alien must be subject to the 3- or 10-year bar of inadmissibility for unlawful presence. This is important because the provisional unlawful presence waiver only applies to inadmissibility for the 3- or 10-year bars.  It is important to note that the provisional unlawful presence waiver cannot waive inadmissibility stemming from the permanent bar, which is triggered by having been subject to the 10-year bar of inadmissibility and then attempted to reenter without being admitted or paroled.

In order to be granted a provisional unlawful presence waiver, an applicant must demonstrate that the refusal of his or her admission would result in “extreme hardship” to a:

• U.S. citizen spouse;
• U.S. citizen parent;
• LPR spouse; or
• LPR parent.

Although a provisional unlawful presence waiver will be revoked if an alien is found to be inadmissible on other grounds or otherwise ineligible for the visa being sought by the DOS, the United States Citizenship and Immigration Services (USCIS) have abandoned the “reason to believe” that the alien may be inadmissible on other grounds standard.  Under the previous regulatory scheme, the USCIS could deny a provisional unlawful presence waiver application if it had reason to believe that the alien was inadmissible on other grounds.  Under the new rules, the USCIS will only consider whether the applicant satisfied the extreme hardship to a qualifying relative requirement and whether he or she merits a favorable exercise of discretion.

Application for a Provisional Unlawful Presence Waiver

The provisional unlawful presence waiver process begins with the filing of the Form I-601A, Application for Provisional Unlawful Presence Waiver.  An applicant must meet the following requirements in order to file and have approved Form I-601A:

• Be at least 17 years of age;
• Be present in the United States at the time of the filing of the application;
• Have a pending case before the DOS based on an approved immigrant visa petition for which the processing fee has been paid (or based on selection to participate in the Diversity Visa program for the fiscal year for which he or she registered);
• Must intend to depart after being granted a provisional unlawful presence waiver in order to apply for an immigrant visa with the DOS;
• Must meet the requirements for an unlawful presence waiver.

An alien who is in removal proceedings may not be granted a provisional unlawful presence waiver. An alien who is subject to an administratively final order of removal, deportation, or exclusion must have filed and had approved a Form I-212, Application for Permission to Reapply for Admission in order to apply for a provisional unlawful presence waiver.

The alien must submit any and all required biometrics with his or her application and pay the requisite fees.  If the alien is not thorough in filing his or her application, the application will be denied.

The alien carries the burden of proof of establishing that he or she is eligible for a provisional unlawful presence waiver and that he or she merits a favorable exercise of discretion.

Approval or Denial

If approved, the provisional unlawful presence waiver does not take effect until the alien departs from the United States, appears for an immigrant visa interview with DOS, and is determined to be otherwise eligible for an immigrant visa.  The petition will be automatically revoked if the applicant is found to be ineligible for the immigrant visa for which he or she obtained a provisional unlawful presence waiver.  If the petition is still valid, the applicant may apply for an unlawful presence waiver abroad.  If the alien attempts to reenter the United States without inspection and admission or parole at any time before obtaining an immigrant visa, the provisional unlawful presence waiver will be revoked.

If the provisional unlawful presence waiver application is denied, it will be denied without prejudice to a subsequent application for a provisional unlawful presence waiver or unlawful presence waiver. However, the applicant must establish eligibility from scratch in any subsequent applications.

Conclusion

The provisional unlawful presence waiver expedites the visa application process for a qualifying individual who would only be ineligible for an immigrant visa based on the 3- or 10-year bar of inadmissibility.  Any immigrant visa applicant who may be subject to the 3- or 10-year bar should consult with an experienced immigration attorney before taking action.  An experienced immigration attorney will be able to assess the situation and determine whether applying for a provisional unlawful presence waiver may be beneficial given the facts of the specific situation.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Resources and materials:

Alexander J Segal - "Provisional Unlawful Presence Waivers (Rules Taking Effect August 29, 2016)", "New Final Rule on Provisional Unlawful Presence Waivers"

Lawyer website: http://myattorneyusa.com

Estimated AAO Case Processing Times as of July 1, 2016

On July 14, 2016, the Administrative Appeals Office (AAO) released its updated case processing times report [link]. The processing times are as of July 1, 2016.

The AAO case processing times are for appeals of unfavorable decisions by United States Citizenship and Immigration Services (USCIS) field offices after an “initial field review.” After initially receiving an unfavorable decision, an applicant may ask for the field office to conduct an initial field review. The USCIS advises that the initial field review should be completed within 45 days.

If the field office does not take favorable action on the appeal, it will then send the applicant a Notice of Transfer to the AAO. The following chart will indicate the estimated AAO processing times for handling appeals.

The expected case processing times for the AAO to render a decision is 6 months or less for all forms as of July 1, 2016. This is mostly unchanged from the expected AAO case processing times as of February 1, 2016, save for the I-129F, Petition for Fiancée, and the Form N-600, Certificate of Citizenship, which were both 7 months as of February 1, 2016 [see blog]. The chart [link] contains the estimated AAO case processing times as of July 1, 2016.

The USCIS explains that the AAO cannot provide case status information on appeals awaiting initial field review by a USCIS field office. However, the USCIS explains that the applicant may contact the USCIS National Customer Service line at (800) 375-5283 (the TTY number is (800) 767-1833) to inquire about a case if the applicant has not received any of the following from the USCIS within 75 days of filing the appeal:

• An approval notice;
• A request for evidence;
• A Notice of Transfer to the AAO; or
• Any other correspondence or action from the [USCIS] field office.

Persons filing immigration forms for benefits or immigration relief should always consult with an experienced immigration attorney. An experienced immigration attorney will not only be of assistance in the process of appealing an unfavorable decision by the USCIS, but also in the initial filing of a form in helping the applicant to ensure that he or she is filing for the correct immigration benefits and that the forms are properly filed with all of the requisite evidence.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

How to Apply for Asylum and Withholding of Removal

What are Asylum and Withholding of Removal?

Asylum, statutory withholding of removal, and withholding of removal under the Convention Against Torture (CAT) are three distinct forms of immigration relief.

A person may apply for asylum affirmatively (outside of immigration proceedings) or defensively (while in immigration proceedings). A person may be granted asylum based on past persecution or prospective persecution in his or her home country. A grant of asylum confers immigration status and a path to permanent residency. An asylee may confer benefits on certain derivatives.

Withholding of removal is only available in removal proceedings. Unlike asylum, it only applies to prospective threats to the life or freedom of the applicant (statutory) or prospective torture (CAT). An order of withholding of removal or deferral of removal (a separate CAT benefit) may only be entered after a final order of removal is first entered against the applicant. A grant of withholding of removal does not confer a lawful immigration status, a path to permanent residency, or derivative benefits. Furthermore, withholding of removal only withholds the removal of an applicant to a specific country.

Affirmative Asylum Applications

In order to apply for asylum outside of removal proceedings, the person must be present in the United States and file the Form I-589, Application for Asylum and for Withholding of Removal. In general, the applicant must file within one year of arrival in the United States. The applicant will have an asylum interview after filing his or her application. The applicant should receive his or her decision within 180 days of the interview.

Although an alien cannot apply for withholding outside of removal proceedings, his or her application will be considered for withholding of removal if the applicant is served with a Notice To Appear during the pendency of the asylum application.

Defensive Asylum Applications in Removal Proceedings and Withholding of Removal

An alien already in removal proceedings may file the Form I-589 defensively. An application for asylum in removal proceedings on a Form I-589 shall also be considered an application for withholding of removal. It may also be considered an application for relief under CAT if the applicant indicates on the Form I-589 that he or she has a fear of torture or if the evidence submitted by the applicant suggests that he or she would be tortured in the country of intended removal. An applicant in removal proceedings may file the Form I-589 even if he or she is subject to a bar to applying for asylum and the application will be considered for withholding of removal.

Under certain circumstances, an alien who is ordered removed may be eligible to file a motion to reopen removal proceedings or to ask the Board of Immigration Appeals (BIA) to reconsider its decision on an asylum/withholding application. In general, this is a potential remedy if there is evidence pertinent to the applicant’s eligibility for relief that is based on changed country conditions and that could not have been available at the time of the original application.

Special Cases

If an alien is found to be inadmissible at the border, he or she may be granted a credible fear interview if he or she expresses a fear of persecution or of being returned to his or her home country. If the alien is found to have a credible fear of persecution, he or she will be subject to section 240 or section 208(c) (if a stowaway) proceedings.

Aliens who are placed in expedited removal proceedings or who become subject to an order of reinstatement of removal may express a fear of persecution and be granted a reasonable fear interview. Such aliens will only be eligible for withholding of removal and not for asylum. If the alien is found to have a credible fear of persecution, he or she will be referred to immigration proceedings for full consideration of the claims.

Conclusion

If an alien believes that he or she has a claim to asylum or withholding of removal, he or she should consult with an experienced immigration attorney immediately. An experienced immigration attorney will be able to assess the alien’s situation and determine whether it warrants applying for asylum and/or withholding of removal. If so, an experienced immigration attorney will be able to guide the applicant through the entire process. The asylum and withholding of removal application process is complicated, and it requires extensive documentation and testimony to corroborate an applicant’s claims.

It is important to note that there are severe penalties for filing a “frivolous” asylum application or for not being truthful in the context of the asylum application process. Applying for asylum and withholding of removal is a serious step and not simply a procedural way to seek immigration status or relief from removal. It is crucial to be honest when making an asylum claim and throughout the application process.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Resources and materials:

Alexander J Segal - "Asylum in the United States", "Withholding of Removal for Aliens Subject to Expedited Removal as Aggravated Felons or Reinstatement", “Applying for Withholding of Removal in Section 240 Removal Proceedings”

Lawyer website: http://myattorneyusa.com

Two Canadian Teenagers Commit Inadvertent Illegal Border Crossing While Playing Pokémon Go

I recently came across a peculiar instance of illegal immigration that could quite literally have only happened in 2016. As reported by Reuters, two Canadian teenagers in Alberta were fixated on searching for Pokémon while playing Pokémon Go on their phones.[1] They were in fact so fixated that when they were discovered by U.S. Customs and Border Protection (CBP), they had crossed over the Canadian border into what the article describes as a “remote part of Montana.” Fortunately for the two teenagers, no immigration proceedings were required as the CBP reunited them with their parents at a nearby CBP border patrol station.

In many cases, Canadian citizens seeking to enter the United States from Canada will not even need to procure a visa in order to be admitted to the United States temporarily for business or pleasure [see category]. It is even possible under certain conditions for a Canadian citizen to be admitted on TN status for employment without a visa [see article to learn more]. A Canadian citizen with questions about visiting the United States for business or pleasure or who is seeking a nonimmigrant or immigrant status in the United States should consult with an experienced immigration attorney. With regard to wandering into a different country while playing Pokémon Go, one should not need the counsel of an experienced immigration attorney to know that it is best to look up once in a while and be aware of one's immediate surroundings, much less one's country of current location.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. Herskovitz, Jon. “Pokemon GO Blamed for Illegal Border Crossing from Canada to U.S.” Reuters. Ed. Bernard Orr. Thomson Reuters, 23 July 2016. Web. 04 Aug. 2016.

Lawyer website: http://myattorneyusa.com

Filling Out Form I-589 Application for Asylum

Introduction

In order to file for asylum and/or withholding of removal, an applicant must file the Form I-589, Application for Asylum and for Withholding of Removal.  There are two situations in which a person may file the Form I-589:

• I. Affirmative Asylum Application – The applicant is applying for asylum outside of removal proceedings.
• II. Defensive Asylum Application – The applicant is filing for asylum as a defense during removal during proceedings.  The application will also be considered for statutory withholding of removal and for withholding of removal under the Convention Against Torture (either if the applicant requests such consideration or if the evidence submitted suggests that relief under the Convention Against Torture may be appropriate).  The statutory bars to applying for asylum do not prevent a person from filing the Form I-589 in removal proceedings because the application can be considered for withholding of removal.

If a person believes that he or she may be eligible for asylum and/or withholding of removal, it is crucial to consult with an experienced immigration attorney.  In addition to the high stakes faced by a person who fears violence, persecution, or torture if removed to his or her home country, the Form I-589 application is complicated, and the applicant will need to submit compelling evidence to support his or her claims for immigration relief.  An experienced immigration attorney will be able to determine if the person has a bona fide case for relief (there are penalties for frivolous asylum applications) and, if so, to guide the applicant through the asylum/withholding application process if he or she does.

Filing a Form I-589

If the applicant is making an affirmative asylum application, he or she must file the Form I-589 with the appropriate USCIS Service Center having jurisdiction over his or her place of residence.  If the applicant is filing the Form I-589 while in removal proceedings, he or she must file with the Immigration Court having jurisdiction over the case.

There is currently no filing fee for the Form I-589.  Biometrics services may be required at no cost.

What is on the Form I-589 Application for Asylum and Withholding?

The Form I-589 asylum/withholding application is broken into several Parts. Before continuing, it is important to note that the Form I-589 is filled out under penalty of perjury. An applicant must fill out the Form I-589 with the understanding that he or she may face serious consequences if the information provided is not truthful.

The application will ask for information about the background of the applicant and his or her spouse or children (Part A); the basis on which relief is being sought along with evidence (Part B); additional information about the history of the applicant and his or her family members in their home country; their U.S. criminal history (Part C); and certification, under penalty of perjury, that all of the information provided is truthful (Part D; and Parts F/G depending on whether the application was affirmative or defensive).  Part E is for information about the preparer of the form, if it was not the applicant or his or her family member.  Supplement A addresses additional information about the applicants’ children.  Supplement B concerns additional information pertaining to the applicant’s application for asylum.  The applicant is required to submit reasonably available corroborative evidence for his or her claims for relief.  If he or she is unable to procure such evidence at the time of preparing the application, the Supplement B should be used to explain the reasons.

The Form I-589 instructions go into detail about the requirements for submitting a complete Form I-589 asylum application. It is important to follow these directions carefully, because the USCIS will return any incomplete applications. It is important to note that for many documents, including the Form I-589 itself, the instructions require that the applicant submit a certain number of copies. Additional documentation will be required if the applicant has extensive supplementary materials with his or her application or if he or she is including relatives in the application.

If the application is incomplete, USCIS will return it within 30 days.  An application will be incomplete if any questions on the Form I-589 are left blank; if it is unsigned; if it is submitted without the required photograph; if it is sent with insufficient copies of supporting materials; or if the applicant specifies that someone besides the applicant or an immediate family member prepared the form, but the preparer failed to complete Part E.

Conclusion

This article provides a brief overview of what one may expect to find on the Form I-589. As I noted at the beginning of the article, it is important to talk to an experienced immigration attorney before filing for asylum, and to work with an experienced immigration attorney throughout the asylum application process.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Resources and materials:

Alexander J Segal - "Asylum in the United States"

Lawyer website: http://myattorneyusa.com

Election Issues and Immigration #2: The Immigration Record of Mike Pence

THE SELECTION OF MIKE PENCE

After much speculation, the presumptive Republican nominee for President, Donald Trump, selected Indiana Governor Mike Pence of Indiana as his running mate. Prior to his single term as Governor of Indiana, Pence served six terms in the U.S. House of Representatives (2001-2013). During his tenure in the House, Pence also served one term as Chair of the House Republican Conference (2009-2011). Pence generally has a reputation as a solid conservative (however, his selection has notably angered many social conservatives) and is not known for his flamboyance, arguably providing some balance to the ticket. However, Pence is a curious choice in other respects. Before the decisive Indiana Primary, Pence endorsed Senator Ted Cruz of Texas, albeit while spending much of his endorsement announcement praising Trump. That contrasted with many reports, including one by the National Review's Tim Alberta, that Pence had expressed to friends that he “loathed” Trump.[1]

While it is impossible to say what effect Governor Pence will have, if any, on the positions that Trump adopts during the election, Pence's time in government provides a window into his positions on immigration. In this post, I will examine Pence's record on immigration and compare it to the positions taken by Donald Trump during his campaign. To learn about some of Trump's inconsistent immigration positions over the years, please see my blog post [see blog]. To see other entries in my series of posts about immigration issues and the November elections, please see my introductory post [see blog].

MIKE PENCE ON IMMIGRATION

In Congress, Pence generally voted with his party on immigration issues. In 2006, Pence supported The Board Protection, Anti-terrorism, and Illegal Immigration Control Act of 2005, which proposed numerous border security measures including a 700-foot wall along the Mexican Border.

In 2009, Pence supported legislation to end birthright citizenship for children of non-permanent resident aliens who are not performing active service in the armed forces [see blog on subject].[2]

Pence spoke on a variety of immigration issues in a lecture he gave to the Heritage Foundation on June 2, 2006 [see link].[3] In his lecture, Pence supported drastically increasing the number of border patrol agents. Pence opposed amnesty, which he defined as “allowing people whose first act in America was an illegal act to get right with the law without leaving the country.” However, his solution was to encourage such aliens to “self-deport” before allowing them to seek readmission as employment-based guest workers. Under Pence's proposal, an alien who self-deported would be able to seek admission as a guest-worker by applying at an “Ellis Island Center” run by private employers but sponsored by the U.S. government. Pence stated that a virtue of his program would be that many aliens would only have to depart the United States for a week before returning as a temporary worker. He proposed letting the program run for three years before reassessing it based on Department of Labor employment statistics, and subsequently looking to deport those aliens who were present illegally but declined to self-deport. Pence proposed allowing guest workers under his plan to seek citizenship after two three year increments on guest worker status.

As Governor of Indiana, Pence sought to prevent Syrian refugees from being settled in his state. Interestingly, Pence was harshly critical of suggestions, most prominently floated by Donald Trump, that Muslims should be barred from entering the United States as immigrants or nonimmigrants. Pence even went as far as to describe the proposals as “unconstitutional.” However, in an interview after being announced as the presumptive Vice Presidential nominee, Pence stated that he supported Trump's more recent proposal to “suspend immigration from countries where terrorist influence and impact represents a threat to the United States.” Pence supported Trump's proposal to build a wall along the U.S.-Mexican border and agreed with Trump's assertion that Mexico would pay for it.[4]

WILL PENCE HAVE AN EFFECT ON TRUMP'S IMMIGRATION PROPOSALS?

It is too early to say whether the addition of Pence to the Republican ticket will have any discernable effect on Trump's immigration proposals. During his initial statements since being selected as Trump's running mate, Pence has adopted and defended the positions of Trump, thus indicating that his role will likely be defending Trump's proposals rather than adding many of his own.

Interestingly, Pence's proposal for encouraging aliens who entered the United States illegally and never gained status to self-deport bears certain similarities to not only Mitt Romney's proposal to encourage self-deportation in 2012, but also Donald Trump's proposal in that Pence sought to provide ample opportunity for aliens who self-deported to return to the United States with legal status and, eventually, a path to citizenship. While Trump proposed deportations as opposed to self-deportations, he has also expressed an interest in allowing many of the very people he would order deported to expeditiously return to the United States with legal immigration status. Pence's proposal, while certainly more humane than Trump's, can just be well described as “touchback amnesty” for the ease it would have allowed aliens who self-deported to have a pathway to citizenship. Pence's insistence that his proposal was not for amnesty or “touchback amnesty” because an alien would have had to self-deported for as little as a week is unconvincing.

While I disagree with some of his Pence's immigration proposals, such as for building a wall across the U.S.-Mexican border (unrealistic), touchback amnesty (I support a long pathway to citizenship for certain otherwise law-abiding persons here illegally so long as it is tied to demonstrable border security benchmarks and strict background checks), and ending birthright citizenship, Pence brings a wealth of policy experience and a generally pro-legal immigration perspective to the Republican ticket. While Pence has not always struck the perfect balance between promoting legal immigration and immigration enforcement, his record on immigration issues has been far superior to that of Trump's or Hillary Clinton's. Accordingly, Trump could do far worse (as he often has) than to seek the counsel of Pence and other experienced Republicans in developing a solid and coherent platform on immigration issues. Unfortunately, the preponderance of the evidence from the 2016 campaign thus far would indicate that it is far more likely that Pence will be defending Trump's immigration proposals than that he will have the opportunity to cause Trump to consider developing a better immigration platform.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. Alberta, Tim, “Why Cruz is Going All-In on Indiana,” National Review Online, (Apr. 20, 2016), available at http://www.nationalreview.com/article/434265/ted-cruz-indiana-primary-strategy
2. http://www.ontheissues.org/IN/Mike_Pence_Immigration.htm
3. Pence, Mike, “Border Security and Immigration: Building a Principled Consensus for Reform,” heritage.org, (2006), available at http://www.heritage.org/research/lecture/border-security-and-immigration-building-a-principled-consensus-for-reform
4. Johnson, Jenna, “In introducing Mike Pence, Donald Trump keeps the spotlight on himself,” Washington Post, (Jul. 16, 2016), available at https://www.washingtonpost.com/news/post-politics/wp/2016/07/16/in-introducing-mike-pence-donald-trump-keeps-the-spotlight-on-himself/

Lawyer website: http://myattorneyusa.com

What is Withholding of Removal Status?

What is withholding of removal?

Withholding of removal is a form of relief from removal that prevents an alien against whom a final order of removal has been entered from being removed to a specific country. Withholding of removal does not confer a withholding of removal status. It merely prevents an alien from being removed to a specific country and does not entitle an alien to immigration benefits. An alien who has been granted withholding may be removed to a third country to which he or she would not be likely to be persecuted or tortured.

Two Distinct Forms of Withholding of Removal

1. Statutory withholding of removal allows an alien to seek withholding from a country where he or she presents evidence indicating that it is more likely than not that he or she would be persecuted on the basis of one of five enumerated grounds. Unlike asylum, the alien may not rely upon past persecution to demonstrate eligibility if he or she cannot demonstrate likely persecution in the future.
2. Withholding of removal under the Convention Against Torture (CAT) allows an alien to seek relief by presenting evidence that indicates it is more likely than not that he or she would be tortured in the country of intended removal.

If an alien is falls under a statutory mandatory denial ground for withholding of removal, he or she will be ineligible for both statutory withholding of removal and withholding of removal under CAT. However, if such an alien demonstrates that it is more likely than not that he or she would be tortured in the country of intended removal, the alien shall be granted deferral of removal to that country instead of withholding of removal.

Applying for Withholding of Removal

If an alien in regular removal proceedings applies for asylum, his or her application will also be considered for withholding of removal. If an alien makes an affirmative asylum application and is never placed in removal proceedings, the application will not be considered for withholding of removal. While asylum can be denied on discretionary grounds, an alien must be granted withholding of removal if he or she satisfies the requisite burden of proof.

The process for seeking withholding of removal is slightly different for an alien who is subject to a final order of administrative removal or administrative removal. In such a case, the alien must establish a “reasonable fear” of persecution or torture in in an interview with an asylum officer. If the alien is subject to expedited removal proceedings, he or she must establish a “credible fear” of persecution or torture in an interview with an asylum officer.

Conclusion

Withholding prevents an alien from being removed to a country where he or she would likely be persecuted or tortured. An alien in removal proceedings should consult with an experienced attorney for guidance in pursuing defense from removal. If appropriate, an experienced immigration attorney can help an alien pursue asylum and/or withholding of removal.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Resources and materials:

Alexander J Segal - "Eligibility for Statutory Withholding of Removal"

Lawyer website: http://myattorneyusa.com