Individuals seeking entry into the United States, or those already present who wish to avoid persecution in their home countries, can explore several options under U.S. immigration law to legalize their status. Those outside the United States may seek refugee status under U.S. federal law for safe entry. For those already in the U.S., there are two main avenues to avoid repatriation to their country of origin persecution is likely: first, applying for refugee status under 8 U.S.C. 1158(a), and secondly, filing petitions in immigration court to cancel deportation under 8 U.S.C. 1253(h).
Applicants for refugee status must demonstrate a well-founded fear of persecution. This involves presenting specific reasons and evidence to support their fears of unlawful persecution. It is the applicant’s responsibility to prove that the stated facts occurred by a preponderance of the evidence. The immigration officer must be convinced that the events described are more probable than not. This contrasts with the objective proof of a clear probability of persecution required for cancellation of removal. Under 8 U.S.C. 1158(a), which applies to refugees, the requirement is to show only a subjective fear of likely persecution in the immigrant’s home country.
Generally, persecution refers to threats to the life or liberty of individuals based on their distinct characteristics, which lack justification in the eyes of civilized states. The harm inflicted on such individuals is grounds for seeking refugee status.
Subjective perceptions of persecution risk can be substantiated even without physical evidence, relying instead on the refugee applicant’s oral testimony. This perceived danger must be well-founded and reasonable, such that any average person in the same situation would feel similar fear. Federal courts have recognized that an alien’s fear of persecution may be deemed well-founded even if the threat is remote. If an applicant can show past persecution, it is presumed that future persecution will occur on the same grounds.
Categories of Refugees
Under U.S. law, specific grounds dictate eligibility for refugee status due to persecution in the country of citizenship. According to 8 U.S.C. 1158(b)(1), individuals persecuted based on race, religion, national origin, membership in a particular social group, or political opinion may qualify as refugees. It is crucial to demonstrate that the persecution experienced was due to the individual’s own political views, not those of the persecutors. In cases involving social groups, the applicant must be part of a group whose members share immutable characteristics (like physical attributes) or traits deeply integral to their identity and conscience, which a civilized society wouldn’t rightfully compel them to change. Thus, a refugee should be part of a group targeted for characteristics that are inherent and unchangeable.
The applicant bears the responsibility of proving that the persecution and the ensuing harm are reasonably linked to discrimination on one of the grounds enumerated in immigration law. Given the near impossibility of ascertaining the exact motivations of persecutors, the U.S. Supreme Court has determined that direct evidence of discrimination based on the reasons listed in 8 U.S.C. 1158(b)(1) is not mandatory. Circumstantial evidence, deemed credible by officials, can establish a link between the persecution experienced and the personal characteristics protected under American law. The harm inflicted must be motivated, at least in part, by the individual’s political, religious, or social beliefs, or other grounds as outlined in 8 U.S.C. 1158(b)(1).
To be eligible for refugee status, it is not required that the persecutors act on behalf of the government. An individual may also attain refugee status if the persecuting group is beyond the control of a country’s government. In international law, the essence of asylum is that some countries are willing to welcome foreigners in their territory and uphold the civil rights of individuals from states where the authorities fail to protect the basic rights of people, such as the right to life or liberty.
Impossibility of Moving
Under 8 C.F.R. § 208.13(b)(1)(i), an individual who can safely relocate within their country of citizenship to avoid persecution is ineligible for refugee status. This principle also applies when attempting to obtain relief from removal on the grounds of potential future persecution. The immigration judge must be satisfied that the individual cannot relocate to another part of his or her country where the persecutors lack influence. U.S. Immigration Service regulations require the consideration of two factors when assessing the feasibility of internal relocation: the physical possibility of moving to a safe area, and the reasonableness of such relocation for the individual.
Economic Harm
The question arises whether acts of economic discrimination and harassment can constitute persecution under immigration law. Persecution must extend beyond mere unpleasant or isolated harassment. However, an immediate threat to life or freedom is not a prerequisite to establish persecution. Federal courts have determined that, while the law does not specify a minimum threshold for refugee protection, the severity of the hardship endured by the applicant must be significant. Persecution can manifest in various forms.
Economic harm may be considered as persecution in immigration cases if there is a significant likelihood of the individual’s suffering a considerable economic disadvantage due to their membership in one of the groups listed in 8 U.S.C. 1158(b)(1). Court decisions involving solely economic harm hold that the U.S. Congress deliberately avoided specifying “physical harm” or “physical persecution” in the legislation. Hence, economic harassment can be grounds for asylum. It is not mandatory to show that the economic discrimination resulted in the individual’s inability to earn a sufficient living. For instance, refugee status was granted to an Arab sailor after the Israeli military destroyed his fishing nets and boats. In another case, a woman from Nicaragua received asylum after demonstrating that the government seized her farmland and hindered her commercial activities.
Applications Submitted More Than a Year Later
Refugee status must be applied for within the first year of the alien’s arrival in the United States. If the foreign national cannot show a significant change in circumstances directly affecting their ability to apply for asylum, or if they cannot prove unusual circumstances that prevented a timely application, then applications submitted more than one year after arrival in the United States are typically denied.
Temporary Withholding of Removal
Under Section 241(b)(3) of the Immigration Act, an individual facing deportation proceedings must prove that his or her life or liberty would be at risk upon returning to their country of citizenship or residence. The grounds for the threat and risk of persecution must be the same as the reasons for asylum claims, namely persecution based on race, religion, political opinion, nationality, or membership in a particular social group.
In contrast to the refugee process, in withholding proceedings, it is necessary to demonstrate a clear probability of future persecution. This requires a more objective assessment of the likelihood of harassment, with courts demanding specific and tangible evidence.
If an applicant for withholding of removal has previously suffered persecution in their country of residence, it is presumed that they will face similar persecution when returned. However, the Immigration Service can counter this presumption by showing that conditions have changed in the individual’s country of nationality, making it safe for the alien to return.
Notably, withholding of removal is not bound by the one-year filing limit applicable to refugee claims. Additionally, even those aliens who face deportation for committing a crime and are ineligible for relief under other parts of the Immigration Act to remain in the U.S. may still apply for cancellation of removal based on the likelihood of persecution.
Convention against Torture
If an alien is unsuccessful in applying for withholding of removal under Section 241(b)(3) of the Immigration Act, there remains a final opportunity to stay in America under the United Nations Convention against Torture. To avert removal from the United States, the individual must show that he or she is likely to face torture in the country of origin. The remedy under the Convention against Torture differs from that provided by asylum and withholding laws. The applicant need not prove torture based on immutable characteristics. However, the Convention specifically pertains to torture, not general persecution. Under the Convention against Torture, there is no requirement to demonstrate the individual’s inability to move within their country of citizenship to avoid harassment by authorities.
To secure a favorable ruling from an immigration court on a relief application based on the UN Convention, the applicant must establish that the acts of torture would be sanctioned by government officials or directly perpetrated by government agents. For purposes of the Convention, “torture” is defined as any act causing severe pain or suffering, whether physical or mental, intentionally inflicted on a person to extract information or a confession, punish the person for an act he or she is suspected of committing, or to intimidate or coerce the applicant.
The area of immigration law involving 8 U.S.C. 1158, which allows aliens to obtain refugee status, has generated numerous cases and proceedings in immigration courts, before the Board of Immigration Appeals, and in federal courts. Securing favorable decisions from immigration officers on asylum applications in the United States is challenging. In cases involving asylum, withholding of removal, and relief under the Convention Against Torture, the support of an experienced and qualified lawyer is crucial.
--
Cancellation of Removal
Holders of permanent resident status, nonimmigrant visa holders, and individuals without legal status who are facing deportation proceedings in the United States can petition the immigration court to cancel their removal under Section 240A of the United States Immigration and Nationality Act.
Securing a cancellation under Section 240A offers forgiveness for the alien’s prior immigration violations. Once deportation is canceled, the individual either regains permanent resident status. However, not all grounds for initiating deportation proceedings can be negated through this legal procedure. Additionally, an immigrant is only entitled to apply for cancellation of removal once in their lifetime.
If the immigration judge rejects the cancellation request, the individual is likely to face a removal order. Nonetheless, if the application for cancellation of removal is initially denied, the immigrant retains the right to appeal to the Board of Immigration Appeals and to the federal appellate court.
The Process of Cancelling Removal for Permanent Residents
The procedure for obtaining cancellation of removal varies based on the immigrant’s status at the outset of court proceedings. If the immigrant initially held a green card, he or she must meet several key prongs. First, he or she must have been a permanent resident for at least five years. Second, he or she must have resided continuously in the United States for seven years following legal entry into the country. Third, he or she must not have committed any serious crimes as defined in section 101(a)(43) of the Immigration Act. Caution is advised here, as many offenses that might have led to convictions in state courts could be deemed particularly serious under immigration law, even if considered minor or not especially serious under state law.
For Non-Permanent Residents Seeking Deportation Relief
Individuals without permanent resident status can seek relief from deportation by meeting specific criteria. First, they must provide evidence of having lived in the United States for 10 years prior to filing the petition. Secondly, the alien is required to demonstrate to the immigration judge that he or she has maintained “good moral character” throughout those 10 years. Thirdly, the immigrant must demonstrate that he or she has not committed certain crimes listed in various sections of the Immigration Act, specifically 212(a)(2) (involving drug offenses and crimes of moral turpitude), 237(a)(2) (other criminal offenses), and 237(a)(3) (forgery). Fourthly, the alien needs to prove to the judge that his or her deportation from the United States would result in exceptional and extremely unusual hardship to their spouse, parents, or children, who are either U.S. citizens or green card holders.
It is important to note that in both of the aforementioned scenarios, the immigration judge will weigh a combination of positive and negative factors to determine whether the immigrant deserves permission to remain in the United States. This second part of the legal inquiry is obligatory for the court, even after it has been established that a petition fulfills all the specified requirements.
An immigration judge may consider various factors, such as family connections, employment history, community involvement, duration of residence in the United States, property ownership and other assets, criminal record, past immigration violations, and expressions of regret and remorse for any misconduct. Typically, evidence submitted with applications for cancellation of removal includes documentation of family ties, testimonies from witnesses about significant events in the person’s life, expert economic opinions on the financial impact of removal, as well as diplomas, certificates, letters of recommendation, and medical bills from local hospitals.
It is crucial to understand that the presence of all positive factors does not obligate the judge to cancel removal in a particular case. The judge retains discretion to make a decision based on his or her assessment of the situation.
Length of Residence in the U.S.
To establish a foreigner’s residence duration in the United States for the required seven or 10 years, it is essential to demonstrate the alien’s having continuously lived in America throughout this period. Any departure from the United States during this time typically disqualifies an immigrant from obtaining a cancellation. However, exceptions exist for temporary departures that do not significantly disrupt the individual’s intent to reside in the United States. For instance, in one case, a court determined that a two-hour departure of an illegal alien to Mexico did not adversely affect the immigrant’s continuous stay in the United States. Conversely, a court ruled that a six-week departure of illegal immigrants from the United States to Germany interrupted their stay because they were aware of their illegal status and attempted to conceal it by returning. The impact of leaving the United States on the continuity of residence is assessed based on factors such as the duration of absence, the purpose of the trip, and the sincerity of intentions upon returning to the United States.
It is also important to note that committing crimes in the United States interrupts the continuity of an individual’s residence. In other scenarios, if the alien has no criminal or other violations, their time in the United States is considered interrupted upon receiving a Notice to Appear from the immigration court.
Jump Back Half a Century
The criteria for cancellation of removal in the United States have evolved over the history of American immigration law. Prior to 1940, neither the U.S. Attorney General nor immigration authorities had the power to delay the removal of illegal immigrants from America. The only available option for foreigners to remain in the United States was through a private bill drafted by a U.S. Congress member specifically to halt a particular immigrant’s deportation (a measure still available today).
Starting in 1940, immigration officers gained the authority to cancel deportations for immigrants if their removal would cause serious economic harm to them and their relatives. This standard focused solely on economic factors and did not encompass general hardship, as modern requirements do. Nevertheless, this legislative change enabled courts and immigration officers to consider the differences between the individuals’ lives in America and their potential lives in other countries. Additionally, the longer a person lived in the United States and the greater their financial assets, the stronger the likelihood was for their petition to cancel deportation to be successful.
In 1952: New Standards for Deportation Relief
With the introduction of new rules in 1952, immigrants seeking relief from deportation had to demonstrate exceptional and extremely unusual hardship to themselves or their families. Despite changes in legal wording, deportation cases in the 1950s still predominantly focused on the economic and financial issues faced by individuals on the verge of removal. This emphasis continued until 1962, when new legislation reduced the threshold from exceptional and extremely unusual hardship to extreme hardship. During this period, which could be considered the most lenient in modern American immigration history, immigrants in deportation proceedings could argue for staying in the U.S. by proving extreme hardship to themselves or their loved ones.
The Shift in 1996
The situation shifted significantly in 1996, when the required level of hardship that foreigners had to prove was raised back from ordinary extreme hardship to exceptional and extremely unusual hardship. Additionally, to cancel deportation, it became necessary to demonstrate that these exceptional and extremely unusual difficulties would affect not the immigrant himself, but his close relatives who are citizens or permanent residents of the United States.
Exceptional and Extremely Unusual Hardships
It is a recognized fact that any foreigner facing deportation will invariably endure serious hardship. However, the mechanism for canceling removal is not designed for every foreigner with good moral character who has been in the United States for 10 years. It must be substantiated with specific facts and legal arguments that the deportation of a particular immigrant would inflict exceptional and extremely unusual hardship on their spouse, children, or parents who are U.S. citizens or green card holders. These hardships should be markedly different from those experienced by any other family facing the deportation of a loved one by U.S. authorities. In instances where exceptional and extremely unusual hardship cannot be established for a single family member, it is permissible to present evidence showing that the combined hardships of two or more individuals amount to exceptional and extremely unusual hardship under immigration law.
Factors considered by U.S. courts in deciding whether to vacate deportation based on relatives’ hardship include the number of years lived in the United States, family connections, relationships among family members, the relatives’ ability to obtain visas for foreign travel, financial struggles due to deportation, and considerations of age and health, as well as the emotional impact of separation on family members. It is typically required to prove not only that family members would suffer exceptional and extremely unusual hardship if they remained in the U.S. when their loved one gets deported but also that the deported immigrant’s family would experience similar hardship if they tried to relocate to the immigrant’s new country.
Family Connections
Family ties hold significant importance in American society, and the prospect of separating family members requires thorough consideration. In several court cases, the presence of family connections and the potential for family separation have served as constitutional grounds for canceling removal. Conversely, an alien lacking family ties in the United States may find this fact adversely affecting his or her request for cancellation of removal. Children born to foreigners residing in the U.S. are American citizens, but the birth of a child to a foreigner facing deportation does not automatically confer privileged status. The circumstance of children accompanying deported parents abroad does not, on its own, constitute sufficient hardship to cancel removal. Similarly, potential inconveniences for a child due to the deportation of his or her foreign-born parent are not adequate to demonstrate particularly extreme hardships.
From the Immigration Service’s perspective, a key reason for rejecting this argument is the potential for circumventing immigration laws by foreigners who enter the country and have children. The mere presence of a native-born child does not warrant removal cancellation. However, if the foreign parent demonstrates a strong bond with their child, and the child is deeply attached to the parent, deportation under such circumstances can be deemed very distressing. The fact that citizen children are of school age could influence the decision regarding removal cancellation, particularly if continuing education in the parent’s country of citizenship is unfeasible.
Financial Difficulties
A foreign national who must sell a business or property due to deportation may qualify for cancellation, especially if the loss negatively impacts their relatives in the United States. Immigration courts have, in several decisions, concurred with arguments that losing a business constitutes extreme hardship. In other instances, financial loss was deemed insufficient to pose an extreme hardship. Minor economic difficulties are generally not accepted by most courts as grounds for canceling deportation.
Age and Health
The age and health of a foreigner and his or her spouse, parents, and children can be significant factors in deciding on removal cancellation. These aspects are challenging to assess. Foreign nationals and their relatives who have resided in the U.S. for an extended period often find it easier to prove extreme hardship compared to younger individuals or those who have lived in the country for a shorter duration.
Other Factors
Various additional factors may be considered by the Immigration Service and courts in removal cancellation cases. The Board of Immigration Appeals has taken into account factors like an alien’s participation in combat, loyalty to the United States, as well as proficiency in English and knowledge of U.S. history. However, lower authorities often rely on more traditional criteria to establish hardships.
What Is Omitted in the Law
Despite the rigorous refinement of immigration rules concerning the cancellation of removal by the U.S. Congress, federal courts, and the Board of Immigration Appeals, several notable omissions remain. A notable gap is that, according to the strict wording of the law, permanent residents who have held a green card for less than five years are not eligible to file a petition for cancellation of removal. This aspect of the Immigration Act presents a contradiction with the principles of the U.S. Constitution. There appears to be no rational justification for why individuals who have lived in the United States for an extended period under nonimmigrant status should lose the opportunity to file for deportation relief simply because they have not held a green card for a full five years. This discrepancy highlights a potential area of unfairness within the current immigration legislation, where the length of lawful residency seems to be inconsistently valued in the context of removal relief eligibility.
