An individual can apply for political asylum and withholding of removal if s/he fears persecution on account of race, nationality, religion, political opinion, or membership in a social group.[375]  Any person from areas of human rights abuse or war should be informed of the possibility of applying for asylum and withholding, as well as the Convention Against Torture, as a defense to removal.  See § 2.47, infra, for a discussion of withholding of removal and § 2.8, supra, for a discussion of the Convention Against Torture.

 

Related Forms of Relief.  There are other forms of relief for persons facing severe problems in the home country, including Temporary Protected Status,[376] Deferred Enforced Departure,[377] and country-specific legislation.[378]

[375] INA § 208, 8 U.S.C. § 1158 [asylum]; INA § 241(h), 8 U.S.C. § 1251(h) [withholding].

[376] See § 2.37, infra.

[377] Ibid.

[378] Such as NACARA.  See § 2.23, infra.

BIA

RELIEF " ASYLUM " FILING DATE
Matter of M-A-F-, 26 I&N Dec. 651 (BIA 2015) (where noncitizens first asylum application was filed before May 11, 2005, and a second application was submitted after that date, the filing date later application controls if it is properly viewed as a new application).

RELIEF " ASYLUM " TERMINATION " FRAUD
Matter of PSH, 26 I&N Dec. 329 (BIA 2014) ( To terminate a grant of asylum pursuant to 8 C.F.R. 1208.24 (2013), the Department of Homeland Security must establish, by a preponderance of the evidence, that (1) there was fraud in the aliens asylum application and (2) the fraud was such that the alien was not eligible for asylum at the time it was granted; however, proof that the alien knew of the fraud in the application is not required in order to satisfy the first criterion.); clarifying Matter of ASJ, 25 I&N Dec. 893 (BIA 2012).

RELIEF " CITIZENSHIP " DERIVATIVE ASYLUM
Matter of A-Y-M, 25 I. & N. Dec. 791 (BIA 2012) (respondent qualified for derivative asylee status because respondent was unmarried and turned 21 while mother's asylum application was pending, applying Child Status Protection Act).

RELIEF " ASYLUM " TERMINATION " IJ LACKS JURISDICTION TO REVIEW DHS TERMINATION OF ASYLEE STATUS
Matter of ASJ, 25 I&N Dec. 893 (BIA 2012) (an Immigration Judge lacks jurisdiction to review the termination of an aliens asylum status by the Department of Homeland Security pursuant to 8 C.F.R. 208.24(a)).

RELIEF - ASYLUM - GANG MEMBERSHIP OR RESISTANCE IS NOT A PARTICULAR SOCIAL GROUP
Matter of EAG, 24 I. & N. Dec. 591 (BIA Jul. 30, 2008) (respondent failed to establish that he was a member of a particular social group of "persons resistant to gang membership," as the evidence failed to establish that members of Honduran society, or even gang members themselves, would perceive those opposed to gang membership as members of a social group). http://www.usdoj.gov/eoir/vll/intdec/vol24/3618.pdf

RELIEF - ASYLUM - GANG MEMBERSHIP OR RESISTANCE IS NOT A PARTICULAR SOCIAL GROUP
Matter of SEG, 24 I. & N. Dec. 579 (BIA Jul. 30, 2008) (neither Salvadoran youth who have been subjected to recruitment efforts by the MS-13 gang and who have rejected or resisted membership in the gang based on their own personal, moral, and religious opposition to the gang's values and activities nor their family members constitute a "particular social group."). http://www.usdoj.gov/eoir/vll/intdec/vol24/3617.pdf

RELIEF - ASYLUM - FRIVOLOUSNESS - REQUIRED FINDINGS
Matter of YL, 24 I. & N. Dec. 151 (BIA 2007) (to determine whether an application for asylum is frivolous, the Immigration Judge must address the question of frivolousness separately and make specific findings that the applicant deliberately fabricated material elements of the asylum claim; the applicant must be given sufficient opportunity to account for any discrepancies or implausible aspects of the claim, and Immigration Judge must provide cogent and convincing reasons for determining that a preponderance of the evidence supports a frivolousness finding, taking into account any explanations by the applicant for discrepancies or implausible aspects of the claim). http://www.usdoj.gov/eoir/vll/intdec/vol24/3563.pdf

RELIEF - ASYLUM - PARTICULARLY SERIOUS CRIME JUDICIAL REVIEW - DEFERENCE - BRAND-X
Anaya-Ortiz v. Mukasey, 553 F.3d 1266 (9th Cir. Jan. 27, 2009) (deferring to Matter of N-A-M-, 24 I. & N. Dec. 336 (BIA Oct. 24, 2007), analysis of evidence in particularly serious crime determination; court will no longer apply contrary rule announced in Morales v. Gonzales, 478 F.3d 972, 980 (9th Cir. 2007)). NOTE: In Morales the Ninth Circuit was applying prior BIA case law that was later overruled by Matter of N-A-M.

Second Circuit

RELIEF - VOLUNTARY DEPARTURE - ADJUSTMENT BAR BASED ON FAILURE TO COMPLY WITH VOLUNTARY DEPARTURE
Singh v. Gonzales, 468 F.3d 135 (2d Cir. Nov. 8, 2006) (failure to voluntarily depart barred adjustment of status, under 8 U.S.C. 1229c(d), following grant of motion to reopen). http://caselaw.lp.findlaw.com/data2/circs/2nd/055181p.pdf

RELIEF - POLITICAL ASYLUM
Mirzoyan v.Gonzales, 457 F.3d 217 (2d Cir. Jul. 20, 2006) (reversing and remanding BIA decision which rejected petitioner's claim of economic persecution for clarification where BIA interpretation of "persecution," as used in 8 U.S.C. 1101(a)(42)(A), is unclear as applied to economic persecution claims). http://caselaw.lp.findlaw.com/data2/circs/2nd/050886p.pdf

Third Circuit

ASYLUM " MATERIAL SUPPORT
Sesay v. Atty Gen., __ F.3d __ (3d Cir. May 26, 2015) (no duress exception exists for material support bar to asylum or withholding of removal).

RELIEF - WITHHOLDING - SALE OF DRUGS - REQUIRES CONSIDERATION OF UNDERLYING FACTS
Lavira v. Attorney General of U.S., 478 F.3d 158 (3d Cir. Feb. 26, 2007) (reversing where IJ failed to examine underlying facts of the case in determining whether conviction for attempted sale of a controlled substance was a "particularly serious crime" for asylum/withholding purposes), following Vente v. Gonzales, 415 F.3d 296, 302-03 (3d Cir.2005) ("[I]f the BIA fails to address one of an applicant's stated grounds for relief, the case must be remanded for the BIA to consider the claim.").

RELIEF - WITHHOLDING - PARTICULARLY SERIOUS CRIME - CONVICTIONS OTHER THAN CONVICTION IN QUESTION ARE IRRELEVANT TO THIS DETERMINATION
Lavira v. Attorney General of U.S., 478 F.3d 158 (3d Cir. Feb. 26, 2007) (immigration judge erred in considering convictions of the defendant other than the conviction in question in offense was a particularly serious crime).

RELIEF - ASYLUM - CRIMINAL DEPORTEES NOT RECOGNIZED AS A SOCIAL GROUP
Toussaint v. Attorney Gen., 455 F.3d 409 (3d Cir. Jul. 26. 2006) (criminal deportees are not recognized as a social group for asylum purposes under United States immigration laws; rejecting asylum claim of Hatian asylum applicant that she would be persecuted in Haiti because she was removed from the United States as a criminal). http://caselaw.lp.findlaw.com/data2/circs/3rd/053311p.pdf

RELIEF - POLITICAL ASYLUM - UNTERMINATED REFUGEE STATUS DOES NOT PRECLUDE GOVERNMENT FROM INITIATING REMOVAL PROCEEDINGS
Romanishyn v. Attorney General, 455 F.3d 175 (3d Cir. Jul. 20, 2006) (INA allows noncitizen who entered the country as a refugee, and later adjusted status to lawful permanent resident to be placed in removal proceedings although the Attorney General never terminated his refugee status pursuant to 8 U.S.C. 1157(c)(4)). http://caselaw.lp.findlaw.com/data2/circs/3rd/053141p.pdf

Fourth Circuit

IDADMISSIBILITY " MATERIAL SUPPORT TO TERRORIST ORGANIZATION
Barahona v. Holder, 691 F.3d 349 (4th Cir. Aug. 13, 2012) (no duress exception exists to the material support of terrorists inadmissibility bar to adjustment of status).

Fifth Circuit

RELIEF " ASYLUM " REINSTATEMENT
Ramirez Mejia v. Lynch, __ F.3d __ (5th Cir. Jul. 21, 2015) (noncitizens whose removal orders are reinstated following illegal re-entry into the United States may not apply for asylum, since asylum is a form of relief for purposes of the bar to relief under INA 1231(a)(5)), agreeing with Herrera"Molina v. Holder, 597 F.3d 128, 139 (2d Cir. 2010).

RELIEF " ADJUSTMENT OF STATUS " ASYLEE WHOSE STATUS WAS TERMINATED MAY APPLY FOR ADJUSTMENT OF STATUS
Siwe v. Holder, 742 F.3d 603 (5th Cir. Feb. 6, 2014) (an alien whose asylum has been terminated is not prohibited from applying for adjustment of status).

Sixth Circuit

RELIEF - ASYLUM - GANG MEMBERSHIP
Urbina-Mejia v. Holder, 597 F.3d 360 (6th Cir. Mar. 5, 2010) (persons who no longer wish to be members of a criminal gang constitute a particular social group for purposes of asylum and withholding of removal).

Seventh Circuit

RELIEF " ASYLUM " REINSTATEMENT
Garcia v. Sessions, __ F.3d __ (7th Cir. Oct. 11, 2017) (noncitizen subject to reinstatement of removal is barred by INA 241(a)(5) from applying for asylum).

JUDICIAL REVIEW - PETITION FOR REVIEW - DISCRETIONARY DECISION - WHETHER CONVICTION CONSTITUTES A PARTICULARLY SERIOUS CRIME IS A DISCRETIONARY DECISION NOT SUBJECT TO PETITION FOR REVIEW JURISDICTION
Petrov v. Gonzales, 464 F.3d 800, 2006 WL 2846451 (7th Cir. Oct. 6, 2006) (question whether conviction constitutes a particularly serious crime, under 8 U.S.C. 1252(a)(2)(C), precluding political asylum or withholding of deportation, is held to be a discretionary decision not subject to petition for review jurisdiction in the court of appeals).
http://caselaw.lp.findlaw.com/data2/circs/7th/054696p.pdf

RELIEF - POLITICAL ASYLUM - PARTICULARLY SERIOUS CRIME
Tunis v. Gonzales, 447 F.3d 547 (7th Cir. May 15, 2006) (Wisconsin conviction of two counts of selling less than a gram of cocaine, with two years suspended sentence, with seven months actual custody ordered, constituted aggravated felony drug trafficking convictions, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), and thus particularly serious crimes under 8 U.S.C. 1231(b)(3)(B)(ii), for purposes of barring political asylum and withholding of removal, because respondent who was the seller in two drug transactions could not be a peripheral figure in the transactions, as required to be eligible for a discretionary finding that her offense was not a particularly serious crime), interpreting Matter of YL, 23 I. & N. Dec. 270, 276-277 (BIA 2002).

Eighth Circuit

RELIEF - POLITICAL ASYLUM - ADJUSTMENT OF STATUS - DHS DOES NOT NEED TO TERMINATE REFUGEE STATUS TO START PROCEEDINGS
Xiong v. Gonzales, 484 F.3d 530 (8th Cir. Apr. 12, 2007) (a noncitizen who enters the United States as a refugee, adjust status, and then is convicted of a deportable criminal offense may be placed in removal proceedings even though the DHS has not terminated refugee status), agreeing with Kaganovich v. Gonzales, 470 F.3d 894 (9th Cir.2006); Romanishyn v. Atty. Gen. of the United States, 455 F.3d 175, 180 (3d Cir.2006); Matter of Smriko, 23 I & N Dec. 836 (BIA 2005).

Ninth Circuit

RELIEF " POLITICAL ASYLUM " DHS HAD NO AUTHORITY TO TERMINATE ASYLUM STATUS
Nijar v. Holder, 689 F.3d 1077, 1086-1087 (9th Cir. Aug. 1, 2012) (DHS does not have the authority to terminate an alien's asylum status; The regulations pursuant to which the Department of Homeland Security terminates asylum status, 8 C.F.R. 208.24(a) and 8 C.F.R. 1208.24(a), are ultra vires because the governing statute, 8 U.S.C. 1158(c)(2), confers that authority exclusively on the Attorney General.).

RELIEF " POLITICAL ASYLUM " AUTHORITY TO DESIGNATE OFFENSES AS PARTICULARLY SERIOUS CRIMES BY REGULATION
Delgado v. Holder, 648 F.3d 1095 (9th Cir. Aug. 19, 2011) (Attorney General has authority to designate offenses as particularly serious crimes through case-by-case adjudication as well as by regulation, for purposes of eligibility for political asylum).

RELIEF - ASYLUM
Valencia v. Mukasey, 548 F.3d 1261 (9th Cir. Dec. 4, 2008) (immigration judge is not required to advise noncitizen of availability of relief from removal where there is no apparent eligibility for the relief; there is no blanket requirement that an IJ must advise respondent of possibility of receiving asylum, withholding or CAT).

RELIEF - INA 209(C) WAIVER - ERROR TO APPLY HEIGHTENED EXTREME HARDSHIP STANDARD WITHOUT FIRST MAKING FACTUAL DETERMINATION THAT CRIME OF CONVICTION WAS VIOLENT OR DANGEROUS
Rivas-Gomez v. Gonzales, 441 F.3d 1072 (9th Cir. April 3, 2006) (statutory rape comes within the definition of aggravated felony "rape"), opinion withdrawn on denial of rehearing as moot, 2007 WL 851336 (9th Cir. March 22, 2007), opinion superseded, 2007 WL 851768 (9th Cir. March 22, 2007) (unpublished) (IJ erred when he applied the "extreme hardship" standard to deny a waiver of inadmissibility for asylees under INA 209(c), 8 U.S.C. 1159(c), without first making a determination based on the facts underlying Rivass conviction that Rivass crime was violent or dangerous; withdrawing discussion of rape), citing In re KA, 23 I. & N. Dec. 661, 666 (BIA 2004).

Tenth Circuit

RELIEF - ASYLUM - FRIVIOLOUS CLAIMS
Ribas v. Mukasey, 545 F.3d 922 (10th Cir. Nov. 4, 2008) (written warning on asylum application form was sufficient notice that filing frivolous asylum claim could result in lifetime bar from relief).