|
|
| |
Termination
Termination of a grant of asylum may be made by the INS or by
an immigration judge or the BIA. An INS asylum officer may terminate
a grant of asylum if he or she determines that one of the following
three factors applies:
- There is a showing of fraud in the alien's application
such that the alien was not eligible for asylum at the time
it was granted;
- For applications filed on or after April 1, 1997, one
or more of the conditions described in INA § 208(c)(2) exist:
(A) the alien no longer meets the conditions described in
subsection (b)(1) owing to a fundamental change in circumstances;
(B) the alien meets a condition described in subsection
(b)(2) (requiring mandatory denial of asylum); (C) the alien
may be removed, pursuant to a bilateral or multilateral
agreement, to a country (other than the country of the alien's
nationality or, in the case of an alien having no nationality,
the country of the alien's last habitual residence) in which
the alien's life or freedom would not be threatened on account
of race, religion, nationality, membership in a particular
social group, or political opinion, and where the alien
is eligible to receive asylum or equivalent temporary protection;
(D) the alien has voluntarily availed himself or herself
of the protection of the alien's country of nationality
or, in the case of an alien having no nationality, the alien's
country of last habitual residence, by returning to such
country with permanent resident status or the reasonable
possibility of obtaining such status with the same rights
and obligations pertaining to other permanent residents
of that country; or (E) the alien has acquired a new nationality
and enjoys the protection of the country of his or her new
nationality. OR
- For applications filed before April 1, 1997, the alien
no longer has a well-founded fear of persecution due to
a change of conditions in the home country, or the alien
has committed an act that would have been one of the grounds
for mandatory denial.
The INS regulations require an asylum officer to interview the
alien before termination can occur. The alien must be given
notice of intent to terminate at least 30 days before the interview.
The alien can present evidence showing that he or she is still
eligible for asylum. If the asylum officer determines that the
alien is no longer eligible for asylum, the alien must be given
written notice that asylum and any employment authorization
are being terminated. The regulations do not address whether
a termination notice may be appealed.
Termination of asylum status for the principal alien also terminates
the status of a spouse or child. The spouse or child, however,
may assert a separate asylum claim of their own.
Withholding of Removal
Under the regulations, an application for asylum automatically
includes a request for withholding of removal. Where a determination
is made that an applicant is ineligible to apply for asylum,
the asylum application will be considered a withholding of removal
application instead. Withholding of Removal is a statutory stay
of removal that allows an individual the right to remain in
the United States and to obtain employment authorization unless
and until withholding is terminated. To be eligible for withholding
of removal an alien must show a ''clear probability of persecution,''
which is a higher burden of proof than the test to determine
eligibility for asylum or refugee status.
The withholding issue is likely to arise only where a person
appears to be a genuine refugee but has missed the deadline
for applying for asylum and does not qualify for any exception
to the filing deadline. Such a person cannot qualify for asylum,
but may qualify for withholding of removal. In such circumstances
the INS regulations prohibit an asylum officer from granting
the application for withholding of removal. Instead, the person
must be placed in removal proceedings, where an IJ will decide
whether to grant withholding of removal.
Applicants for withholding of removal must show that their life
or freedom would be threatened if forced to return to their
homeland. The general statutory test is that a withholding applicant's
life or freedom will be found to be threatened if it is more
likely than not that he or she would be persecuted on account
of race, religion, nationality, membership in a particular social
group, or political opinion upon return to their country of
nationality or last residence. In evaluating whether the applicant
has sustained his or her burden of proof, the asylum officer
or immigration judge will not require a withholding applicant
to provide evidence that he or she would be singled out individually
for such persecution if the applicant can establishe that:
- There is a pattern or practice in the country of persecution
of a group of persons similarly situated to the applicant
on account of race, religion, nationality, membership in
a particular social group, or political opinion; and
- His or her own inclusion in and identification with such
group of persons such that it is more likely than not that
his or her life or freedom would be threatened upon return.
If the withholding applicant suffered past persecution, it will
be presumed that his or her life or freedom would be threatened
on return to that country unless a preponderance of the evidence
establishes that conditions in the country have changed to such
an extent that it is no longer more likely than not that the
applicant would be persecuted there. Regardless of the burden
of proof or presumptions involved, persons seeking withholding
face the difficult task of proving their claims, which may involve
proof of the general dictatorial practices in their home country
and the specific basis for their belief that it would subject
them to persecution.
Termination of a grant of withholding of removal may be made
by the INS or by an IJ or the BIA. An INS asylum officer may
terminate a grant of withholding if he or she determines that
one of the following four factors applies:
- The alien is no longer entitled to withholding of removal
due to a change of conditions in the country to which removal
was withheld;
- There is a showing of fraud in the alien's application
such that the alien was not eligible for withholding of
removal at the time it was granted;
- The alien has committed any other act that would have
been grounds for denial of withholding of removal had it
occurred before the grant of withholding of removal; or
- For applications filed in proceedings begun prior to April
1, 1997, the alien has committed any act that would have
been grounds for denial of withholding of deportation under
INA § 243(h)(2).
The INS regulations require an asylum officer to interview the
alien before termination can occur. The alien must be given
notice of an intent to terminate at least 30 days before the
interview. The alien can present evidence showing that he or
she is still eligible for withholding of removal. If the asylum
officer determines that the alien is no longer eligible for
withholding of removal, the alien must be given written notice
that withholding of removal and any employment authorization
issued pursuant thereto are being terminated. The regulations
do not address whether a termination notice may be appealed.
Termination of withholding status for the principal alien also
terminates the status of a spouse or child. The spouse or child,
however, may assert a separate withholding claim of their own.
After an alien's grant of withholding has been terminated, the
INS is supposed to start removal proceedings against the alien
if he or she is not already in proceedings.
|
|
|
