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Removal Remedies

Hardship, extreme and unusual, are imperative elements in applications such as Cancellation of Removal, Spousal Abuse, Waivers of Excludability, Asylum, Withholding of Removal, and recourse to the Convention Against Torture. These cases require corroborative evidence. If an alien is married to a U.S. citizen or permanent resident, the country conditions of the alien must be demonstrated to determine the extreme and unusual hardship to the U.S. citizen or permanent resident that the citizen or permanent resident would experience in leaving the U.S. to live in the country of the alien spouse.

A refugee is a person outside his country who cannot avail himself of that nation’s protection because of persecution or a reasonable fear of persecution on account of race, religion, nationality, membership in a particular social group or for political opinion. We have been successful, for example, in obtaining asylum for a gypsy from Hungary because gypsies are singled out by Hungarians where they are severely persecuted, brutalized and attacked. Similarly Mexicans who openly and publicly declare their fear of the rampant violence in Mexico have a reasonable fear of violence from the police or drug traffickers. Only in the past month 10% of Mexico’s police officers were dismissed because of colluding with narcotics traders.

An asylum seeker must prove persecution or a reasonable fear of future persecution. To prove the likelihood of future persecution if the asylum seeker has not filed within one year, the asylum applicant must prove by a preponderance of evidence that there has been a fundamental change in the circumstances of the country and that even relocation to another part of the asylee’s country would not avoid persecution.

A pattern or practice of persecution of similarly situated persons on account of race, religion, nationality, membership in a particular social group or of political opinion would be enough to claim asylum for an individual participating or related to one of these groups.

One year filing deadline for asylum seekers

From the date of last admission the clock begins to run. The clock may be stopped for changed country conditions. If an applicant asks for an exception to the one year deadline, the application must still be made within a reasonable time. As an example the dire violence in Mexico without the capability of the Mexican authorities to protect its citizens and the corruption of the judiciary has resulted in our State Department’s admonition that Americans should not now travel to Mexico. An example of a social group for asylum seekers is one of our clients whose family owns a business in Mexico and who have refused to pay protection money to the syndicate. They were threatened with kidnapping or killing of their children. They fled to the U.S. They are entitled to asylum because Mexicans whose children have been threatened with kidnapping may be considered a particular social group for purposes of asylum.

Withholding of removal

For withholding there is no one year deadline. Only the Judge has jurisdiction in this type of case. This type of case may be initiated by a request to Immigration and Customs Enforcement (ICE) to issue a Notice to Appear for a removal proceeding.

Withholding requires proof of the probability of persecution. A demonstration of country conditions is required and if the applicant can show past persecution, then the burden of proof would shift to the government. This remedy is important for asylum seekers who did not file within the one year deadline.

Convenction against torture

Corruption and inability to counteract countrywide violence has been held to fit under the Convention against Torture. This remedy would be particularly apt for Mexicans.

Motions to Reopen petitions for review and stays of removal

Petitions for Review to seek Judicial Review must be filed with a Federal Court of Appeals within 30 days after a final order or removal. A motion to reopen or reconsider is usually filed with the Board of Immigration Appeals.

If you need help or advise, call us at (212)944-9420

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