ASYLUM & WITHHOLDING
At the law office of Brian D. O'Neill, we represent people seeking asylum in the United States. To learn more about remaining in the U.S. legally, contact us for a free initial phone consultation 201-803-2126
Experienced Immigration and Asylum Attorney
Brian O’Neill has established a solid reputation as an immigration lawyer who successfully represents foreign citizens seeking asylum or withholding of removal in the United States. His successes span the Globe, including clients from countries as diverse as Burkina Faso, Columbia, Democratic Republic of Congo, Guatemala, Haiti, Honduras, Iran, Jamaica, Morocco, Nepal, Sierra Leone, Sri Lanka, Togo and Venezuela. He has pending cases from many other countries where citizens live in daily fear of persecution on the grounds protected by asylum law: political opinion, race, religion, nationality and membership in a particular social group.
Asylum law has acquired greater importance in the Trump Era as a tool to protect foreign citizens from death, persecution and torture in their home countries because of the Trump Administration’s attempts to cut back on other forms of relief, such as Temporary Protected Status (TPS) and Deferred Action for Childhood Arrivals (DACA). It may acquire still greater significance if the Trump Administration succeeds in its plan to dramatically cut back legal immigration to the United States.
With some notable exceptions, including “changed conditions” and “exceptional circumstances,” a foreign citizen has one year from the date of last arrival in the United States to claim asylum, either “affirmatively” with the Dept. of Homeland Security before one of its regional “Asylum Offices”; or “defensively” in Immigration Court. The standard used to obtain asylum protection is that the foreign citizen is unwilling or unable to return to the home country because of past persecution, or a “well-founded fear” of future persecution on one of the asylum “protected grounds” listed above.
The “particular social group” ground is a fruitful area for creative lawyering, because of its flexible definition. Recognized categories include LGBTQ individuals, battered women who are unable to leave a relationship and whose governments refuse to protect them, and even family members where family membership is at least “one central reason” for the persecution.
For foreign citizens in Immigration Court “Withholding of Removal” protection is also available outside of the one-year asylum deadline for asylum claims. There are two types of “withholding” relief available: basic ”Withholding of Removal” and ”Withholding Under the Convention Against Torture,” (CAT). These protections are mandatory if certain evidentiary standards are met. There is no time limit for making these claims.
For basic withholding of removal the foreign citizen must show that he falls under one of the protected grounds for asylum claims, and not simply has a well-founded fear of persecution if he is removed to his home country, but also that it is more probable than not that he will be persecuted or suffer a loss of liberty if he is removed. This is a higher standard than for asylum.
The test for withholding under CAT is different. The claim does not need to fall under the “protected grounds” needed for asylum or basic withholding of removal, and instead the foreign citizen must show that he is likely to suffer “torture” (extreme physical or mental pain) inflicted by the foreign government, carried out by others with the knowing acquiescence of the foreign government. These different standards must be carefully documented and proved for a CAT claim to be successful.
In O’Neill’s view, CAT claims will acquire increasing importance in the future, particularly in in Central America where criminal gangs pose “existential threats” to the States themselves. It may be possible to argue that the gangs themselves have so co-opted their countries’ governments through police corruption and control to such an extent that they are government actors in all but name. The extreme violence of these gangs against individuals they “do not like” may provide fertile ground for future CAT successes.
Like any other immigration matter, preparation is the key to succeeding in any kind of asylum-based claim. “Staying power” and persistence are as well. In one recent case Brian O’Neill litigated the matter for 10 years before finally obtaining the belief that his clients deserved.
If you fear harm in your home country, you owe it to yourself to consult with the law office of Brian D O’Neill.