Law offices of Nicklaus Misiti, PLLC.

Asylum, VAWA and Other Humanitarian Based Immigration

Attorneys at Law offices of Nicklaus Misiti are experienced in handling all types of asylum and asylum related claims. Feel free to contact us to set up a case evaluation to further determine if you have a valid claim.

For foreign nationals seeking entry into the United States, applying for relief under asylum, withholding of removal, and the Convention Against Torture (CAT) are three possible options.

Asylum Law requires:

  • the applicant must establish that s/he fears persecution;
  • the applicant must prove that the government is involved in, or unable to control, the people responsible for the persecution; and
  • the persecution must be based on a protected ground, of which there are five (social group, nationality, political opinion, race, and/or religion).

The persecution here does not need to be physical; it can be mental, emotional, psychological, and/or physical. An application for asylum must be filed within one year of the foreign national’s arrival into the United States, unless the applicant’s case falls into one of two situations: first, that conditions in the applicant’s country have changed such that an asylum application is now warranted or second, that extraordinary circumstances led to the delay in filing the application (i.e. physical or mental disability, ineffective assistance of counsel). Asylum also provides successful applicants with lawful permanent residence, the ability to travel outside of the United States, and benefits to the successful applicant’s spouse and children.

Withholding of removal is similar to asylum in that an applicant must demonstrate that s/he is fleeing persecution. An applicant under withholding of removal also has to show that there is a “clear probability” of a threat to life or freedom on account of race, religion, nationality, political opinion, or membership in a particular social group. Unlike asylum, withholding of removal requires applicants to meet a higher standard of proof, namely the “clear probability” of a threat to life or freedom. A successful withholding of removal application also does not give the same benefits as a successful asylum application; withholding of removal applicants do not receive lawful permanent residence, the ability to travel outside of the United States, or benefits to spouses or children of applicants.

Relief under the Convention Against Torture is available to provide deportation relief to a foreign national in the United States who fears facing torture in his/her home country. Torture is defined as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind.” Unlike asylum, convention against torture relief does not require that the applicant demonstrate that such torture will be based on one of the five protected categories (social group, nationality, political opinion, race, and/or religion). A successful applicant must show that the applicant is “more likely than not” to suffer the torture which s/he fears upon return to his/her home country. Additionally, the torture feared by the applicant must be committed by, at the request of, or with permission from a government official. This type of application is also useful to applicants who are not able to apply for asylum because of past criminal history or participation in acts of persecution. A successful applicant under the Convention Against Torture cannot travel outside of the United States and cannot pursue permanent residence.

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