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In the case of a request for a response to deportation proceedings, the application for asylum is submitted to the immigration court competent for the deportation procedure. A hearing is scheduled during which the judge hears evidence for and against the asylum claim. If necessary, an interpreter will be provided by the court. A government lawyer will be present and will have the right to ask questions and argue against the granting of asylum. Once all the evidence and arguments have been heard, the immigration judge decides whether or not to grant asylum. Under 8 C.F.R. 208.16(f), an alien who is denied deportation may be deported to a third country other than the one to which removal was denied. (b) the right to refuse removal under section 241 (b) (3) of the Act; Burden of proof. The burden of proof is on the applicant who refuses to expel under section 241 (b) (3) of the Act to prove that his life or liberty would be threatened in the proposed country of expulsion on account of his race, religion, nationality, membership of a particular social group or political opinion. The applicant`s statement, if credible, may be sufficient to maintain the burden of proof without confirmation.

The evidence is assessed as follows: (a) examination of the application for suspension of removal. An asylum officer cannot determine whether an alien has the right to refuse the exclusion, expulsion or expulsion of the alien to a country where his life or freedom would be threatened, unless the alien is classified as an applicant under section 235 (b) (1) of the Act. who credibly fear persecution or torture, whose case is subsequently retained or referred to USCIS by USCIS under Section 208.2(a)(1)(ii) jurisdiction to consider the refugee claim, and whose refugee claim is not accepted; or in the case of the spouse or child of such an alien who is included in the alien`s refugee claim and files a separate petition for asylum with USCIS that is not granted. In such cases, the asylum officer shall decide, on the basis of the records submitted to USCIS, whether the applicant is entitled to a lawful refusal of removal or to a refusal or postponement of deportation under the Convention against Torture in accordance with paragraph (c) of this article. Even if the refugee officer determines that the claimant has established his or her right to refuse deportation pursuant to paragraph (b) or (c) of this section, the refugee officer must refer the application to the immigration judge for a hearing pursuant to section 208.14 (c) (1). In exclusion, removal or removal proceedings, an immigration judge may rule on both an asylum claim and a refusal of removal application, whether or not asylum is granted. Under 8 C.F.R. 208.16(b)(2), a claimant may prove that he or she has the right to refuse deportation even if he or she has not been prosecuted in the country to which he or she was allegedly deported in the past. To do so, the applicant must demonstrate that he or she is more likely to be persecuted when deported to that country on account of race, religion, nationality, membership of a particular social group or political opinion. However, the claimant will not be able to meet his or her burden if the refugee officer or immigration judge determines that the claimant could avoid the future threat to his or her life or liberty by moving to another part of the proposed country of deportation, if reasonably expected in the circumstances. The regulations stipulate that the applicant does not have to prove that he or she would be prosecuted if the immigration judge finds: (4) In considering an application for refusal of deportation under the Convention against Torture, the judge first decides whether the alien is more likely to be tortured in the country of expulsion than not.

If the judge considers that the alien is more likely to be tortured in the country of expulsion than not, the alien is entitled to protection under the Convention against Torture and the judge decides whether protection under the Convention against Torture should be granted either in the form of a refusal of expulsion, or in the form of a postponement of expulsion. The arbitrator shall find that an alien entitled to such protection may refuse expulsion unless he or she is subject to a mandatory refusal of removal under subparagraph (d) (2) or paragraph 3 of this section. If an alien who is entitled to such protection is refused expulsion under paragraph (d) (2) or (3) of this article, the judge must determine that the alien is entitled to a postponement of expulsion under section 208.17 (a). For cases that fall within USCIS` jurisdiction under Section 208.2(a)(1)(ii), the asylum officer may make such a decision based on the petition and record before USCIS; However, the refugee officer cannot issue an order ordering or adjourning the deportation because it is referred to the immigration judge under sections 208.14(c)(1) and 8 CFR 1240.17. (i) If it is established that the applicant has been persecuted in the past in the proposed country of expulsion on account of his race, religion, nationality, membership of a particular social group or political opinion, it is presumed that his life or freedom will be threatened in the future in the country of expulsion on the basis of the initial application. This presumption may be rebutted if an asylum officer or immigration judge establishes, using overwhelming evidence: The lawful refusal of deportation allows certain aliens who are subject to a permanent removal order to refuse deportation for fear of persecution in the country to which they would otherwise be deported. Refusal of expulsion, whether on the basis of the law or the Convention against Torture, may be granted only if a permanent removal order has been taken against the alien. Unlike asylum, a refusal to deport does not pave the way for permanent residence or the benefits that flow from it.

Please read our article on requesting withdrawal of holdback to learn more about the application process and what happens after the holdback is granted or denied. One. There was a «fundamental change of circumstances» such that the applicant`s life or liberty would not be threatened for any of the five reasons if the applicant were returned to the country where he or she was persecuted in the past; or B. The applicant could avoid a future threat to his or her life or liberty by moving to another part of the proposed country of deportation and, having regard to all the circumstances, it would be reasonable to expect the applicant to do so. One. Yes, only a physical presence in the United States is required. A person without status can obtain legal status if he or she is granted asylum. The only problem is that if the asylum application is rejected, the alien is led to deportation proceedings.

A. Yes. Asylum and refusal to deport can be used to prevent deportation, even if a person would otherwise be deported. If the immigration court determines that you have been removed (e.g. Your statutory statutes have expired), the court will then decide whether you are entitled to asylum or refusal of deportation if you have applied for asylum or refused deportation. If the court rules in your favour, you will not be deported to the country where persecution is suspected. Q. If I`ve been in the U.S. for more than a year, can I apply for asylum or deny deportation? If someone is not deemed eligible for asylum due to the one-year registration period, he or she will still be considered for deportation from Arlington Asylum.

If the applicant does not have the right to refuse deportation because of criminal prohibitions or fear of harm from the government, or with the consent of the government, but not for a protected ground, the applicant will still be considered for CAT protection. (f) removal to a third country. Nothing in this article or § 208.17 prevents the Service from taking an alien to a third country other than the country to which expulsion was refused or postponed. (1) General. Subject to points (d)(2) and (d)(3) of this Section, an application for refusal of removal or removal to a country where removal is proposed shall be accepted if the suitability of the applicant for detention is determined in accordance with points (b) or (c) of this Section. Note that the wording of section 241(b)(3)(A) expressly prohibits the Attorney General from taking an alien to a country where his or her life or liberty would be threatened on the basis of one of the five classifications above.