HIV Positive Homosexual from El Savador Granted Withholding of Removal - Los Angeles Immigration Attorney Nikki Mehrpoo Jacobson
Los Angeles Immigration Lawyer
U.S. Immigration Lawyer
www.GreenCard4You.com
Today is a good day! After four years of litigating this matter before the Los Angeles Immigration Court, the Immigration Judge granted Withholding of Removal to our HIV Positive Homosexual client from El Salvador.
He was ineligible for Asylum because he had been in the United States for over 22 years and had not applied to for Asylum. Prior to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), eligibility for asylum was not linked to how long an applicant had been in the United States. IIRIRA introduced a new eligibility requirement: an asylum applicant filing after April 1, 1998, must apply within one year of his or her last arrival, unless there are changed circumstances which materially affect his or her eligibility for asylum, or extraordinary circumstances relating to the delay in filing. Our client did not qualify for any of the exceptions. However, he did qualify for Withholding of Removal and was granted relief today.
What is withholding of removal?
Withholding of removal is a status which is similar to asylum, but not as secure. People who win withholding of removal have the right to remain in the U.S. and work legally. Unlike asylees, however, people with “withholding” do not have the right to apply for legal permanent residence. People who win “withholding” actually have a final order of removal (deportation) against them, so if they ever travel outside the U.S., they will not be permitted to return here.
How do I apply for “withholding”?
Withholding applications are made on the same form as asylum applications (form I-589) and are made simultaneously with the asylum application. A claim for “withholding” of removal can only be decided in removal proceedings by an Immigration Judge, however. An asylum officer cannot grant “withholding.”
What is the standard for “withholding of removal”?
As with asylum, a “withholding” application must be based on fear of persecution on account of “race, religion, nationality, membership in a particular social group, or political opinion.” The standard for “withholding” is higher than for asylum, however. To win asylum, an applicant must show a “well founded fear” and to win “withholding” an applicant must demonstrate that he or she is “more likely than not” to face persecution if returned to his or her country. In other words, an asylum applicant must show that it’s possible he or she will face persecution whereas a withholding applicant must show that future persecution is probable.
Why would anyone apply for withholding of removal if winning it is so much less useful than winning asylum?
Generally, when a person applies for asylum, he or she applies for “withholding” at the same time. There is no one year filing deadline for “withholding” applications, so sometimes an Immigration Judge finds that an applicant is eligible for “withholding” but not for asylum because the applicant missed the one year filing deadline. There are also certain crimes which may disqualify applicants from winning asylum, but which would not make them ineligible for withholding. Applicants who are convicted of “particularly serious crimes,” however, which include many felonies, are not eligible for withholding, and can only apply for relief under the Convention against Torture.
What is the benefit of being granted “withholding”?
The primary benefit is that you are permitted to remain in the United States. You are permitted to obtain employment authorization and to receive most of the same government benefits as asylees.
Los Angeles Immigration Lawyer
U.S. Immigration Lawyer
www.GreenCard4You.com