Arizona Immigration Assistance with Asylum & Withholding of Removal

Written by Diamondback Legal on March 16, 2023

After the asylum interview, you may be referred to immigration court, formally known as the Executive Office for Immigration Review (EOIR), where you will appear before an immigration judge (IJ). If granted asylum, you can apply for a green card. Thus, asylum provides a direct pathway to citizenship. This article will explore the scope of removal proceedings and how applications for asylum and withholding of removal provide relief from removal.

What Do I Need To Show for Asylum in Arizona?

First, IJs will look at the applicant’s candor and demeanor to issue a positive or negative credibility finding. In other words, whether the person testifying is believable. A positive credibility finding is imperative because what a prospective refugee says is often the only proof available of what happened. Refugees often flee with only the clothes on their backs. They do not carry boxes of evidence with them while doing so.

Thus, asylum provides relief from removal for foreign nationals who can credibly show the following:

Filed for asylum within one year of entering the United States (affirmative asylum) or if after one year has passed:
- Exceptional circumstances excusing the one-year filing deadline
- Asylum filed in defense to being placed in immigration proceedings
Past persecution (not just any form of offensive behavior) based on a protected ground:
- Race, religion, nationality, political opinion or
- Membership in a particular social group (PSG)
Persecution by the government or groups the government is either (i) unable or (ii) unwilling to control
- Underfunded or understaffed police do not meet this burden if the government is making some semblance of effort to control the violence

Establishing eligibility for this form of relief is difficult and has many moving parts. Just because something “bad” happened in an applicant’s country of origin does not mean she has proven asylum. The first task is establishing which boxes to check for protected grounds. Case law has established that mere anti-gang sentiment, without more, does not constitute a political opinion. As such, most applicants try to prove membership in a PSG that U.S. immigration law recognizes as meriting protection. An application for asylum and withholding of removal law firm in Tempe, Arizona can help.

What Documents Do I Need to Support My Asylum Application?

Because applicants are alleging past persecution by a group the government is unable or unwilling to control, their testimony in court will form the majority of their claim. Thus, it is important that they convey the chronology of what happened to the best of their recollection. Documents from the country of origin may include primary and secondary evidence such as:

Police reports
Hospital records
Witness affidavits
Newspaper articles
Online news clips
Department of State (DOS) reports

Any documents illuminating the sequence of events would be helpful. For example, the local news may have covered the murder of a local politician or labor rights organizer. Letters from family and friends who witnessed incidents of persecution can likewise buttress the claim. DOS reports may likewise show glaring human rights abuses by government groups.

What Is the Difference Between Asylum and Withholding of Removal?

Asylum is the superior form of relief because it provides a direct pathway to citizenship for applicants and their families. That is, an asylum grant makes it possible for spouses and Thus, an entire family can be consolidated in one hearing on asylum. They do not require separate applications. Once granted, one family member can apply for LPR status for others.

Withholding of removal, as its name suggests, prohibits the removal of the grantee herself with no path to LPR status or derivative benefits. The grantee may later adjust her status through other means. Further, withholding of removal is harder to prove. Unlike the preponderance of evidence standard for asylum, the applicant must show a clear probability of future persecution (more likely than not) if removed to the country of origin.

Why Does DHS Ask About Safe Relocation in Arizona?

A showing of past persecution creates a rebuttable presumption of future persecution. So once you can demonstrate the elements above, the burden shifts to the government. DHS must now prove the applicant can reasonably relocate safely to another region and not be persecuted. Using a small country like El Salvador as an example, DHS may try to prove the applicant’s family continued to live in the same village without harm or the applicant can safely be removed to another city free of gang violence. Of course, this is difficult to prove. An Arizona asylum and withholding lawyer can help.

Can I Represent Myself in Immigration Court?

This is not advisable. If you are referred by USCIS to EOIR or immigration court, you will receive a hearing notice with a date, time, and location where you must appear. The initial hearing before an IJ is known as a master calendar hearing. You must attend this hearing even if you have not yet retained an attorney or the IJ can order you removed in your absence.

If you do not yet have an Arizona immigration lawyer at the first hearing, the IJ will advise you to get one and give you time to find one. The IJ must also provide a list of pro-bono attorneys who can represent you at a lower cost. But because you are in removal proceedings, the stakes are high. You will want an accredited legal representative to defend you.

How Can An Immigration Lawyer Improve Your Odds of Approval?

An immigration lawyer who has helped many aspiring refugees apply for asylum and withhold of removal can be instrumental to navigating the complex waters of removal proceedings. Because such hearings are adversarial, DHS will be representing the government in arguing for your removal. Matching that power by yourself will prove challenging.

Although a legal representative is optional in the asylum interview with USCIS, you will want one once your case is referred to court. At the EOIR, the court provides its own interpreters and you must answer to an IJ. Thus, immigration attorneys are integral to ensuring:

Proper referral of the entire asylum file from USCIS
Including supplemental evidence bolstering the claim
The procedural advantage in dealing with DHS attorneys
The direction in proving a cognizable protected ground or PSG
Cohesive testimony consistent with the application
Corroborative witnesses that support your asylum claim

IJs will often set a deadline to supplement your referred asylum application known as a “scheduling order.” You must submit all relevant documents by this date or have your attorney prepare a motion for late filing explaining why you could not produce previously-available evidence on time. You’ll want to work closely with your immigration attorney to make sure you highlight relevant incidents of past persecution and respond to DHS objections.

What Happens at the Final Asylum Hearing?

Before and during removal proceedings, there may be some interruption because one party is moving to terminate removal proceedings or to continue hearings due to scheduling conflicts. Your last hearing before DHS and the IJ is known as a “merits” hearing. This is your chance to prove past persecution and the “merits” of your asylum claim. Multiple hearings may be necessary to get through your testimony, and that of witnesses, and for DHS to cross-examine each person. Finally, DHS and your attorney will have opportunities to give closing remarks.

IJs must consider each asylum application on its own, based on the facts and circumstances presented in each individual case. Depending on the IJ’s schedule, the IJ may want to “close” the evidence, schedule written briefs, and either issue a written decision or call the parties back to give an oral decision that is taped using digital audio recording.

What If the IJ Denies Asylum and Withholding of Removal?

The IJ must issue a decision that addresses various issues, including whether:

The respondent testified credibly
Testimony revealed past persecution
Danger of future persecution upon removal
Possibility of reasonable relocation
Respondent merits favorable exercise of discretion

If the IJ denies asylum–and thus the higher burden necessary to prove withholding–your attorney should “reserve” appeal. DHS should waive. With the denial, the IJ will issue a written decision ordering your removal within a set period. The IJ will also give you 30 days in which to file a notice of appeal with the Board of Immigration Appeals (BIA). Having your case on appeal halts the removal order and you will have a chance to make a case before the BIA.

What Happens During Asylum Appeals?

The BIA will set a briefing schedule for deadlines. Your attorney must submit a brief arguing why the IJ erred in denying asylum and DHS will have 30 days to respond. After considering both arguments, the BIA will issue a decision ordering one or more of the following:

Affirm the IJ’s decision with or without an explanation
Reversal of the IJ’s denial on legal or procedural grounds
Remand or return your case to the IJ for further findings

If the BIA affirms the denial, you will have a chance to appeal the BIA’s decision to the appropriate circuit court of appeals.

Contact an Experienced Attorney For Arizona Immigration Assistance

If you are in removal proceedings, contact the Arizona asylum and withholding lawyers of Diamondback Legal today. Call (602) 584-8938 for free Arizona Immigration Assistance or contact us online. We can maximize your chances of getting your asylum application approved.