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Torture

What is the United States Asylum Program and Who Benefits?
Asylum may be granted to people who are already in the United States and are unable or unwilling to return to their home country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. If you are granted asylum, you will be allowed to live and work in the United States. You also will be able to apply for permanent resident status one year after you are granted asylum.

You may include your spouse and any unmarried children under the age of 21 in your own asylum application if your spouse or children are in the United States.

Asylum status and refugee status are closely related. They differ only in the place where a person asks for the status asylum is asked for in the United States; refugee status is asked for outside of the United States. However, all people who are granted asylum must meet the definition of a refugee. If you will apply outside the United States, please see How Do I Get Resettled in the United States as a Refugee?. If you do not qualify for asylum, but fear being tortured upon returning to your homeland, you can apply for consideration under the Torture Convention.

 


There are numerous immigration laws that could result in the denial of this visa if not properly prepared.  If the petition is put together correctly and professionally by a qualified immigration law firm, the chances of approval is greatly increased.

To be eligible for asylum in the United States, you must ask for asylum at a port-of-entry (airport, seaport or border crossing), or file an application within one year of your arrival in the United States. You may ask later than one year if conditions in your country have changed or if your personal circumstances have changed within the past year prior to your asking for asylum, and those changes of circumstances affected your eligibility for asylum. You may also be excused from the one year deadline if extraordinary circumstance prevented you from filing within the one year period after your arrival, so long as you apply within a reasonable time given those circumstances. You may apply for asylum regardless of your immigration status, meaning that you may apply even if you are illegally in the United States.

In addition, you must qualify for asylum under the definition of “refugee.” Your eligibility will be based on information you provide on your application and during an interview with an Asylum Officer or Immigration Judge. If you have been placed in removal (deportation) proceedings in Immigration Court, an Immigration Judge will hear and decide your case. If you have not been placed in removal proceedings and apply with the BCIS , an Asylum Officer will interview you and decide whether you are eligible for asylum. Asylum Officers will grant asylum, deny asylum or refer the case to an Immigration Judge for a final decision. If an Asylum Officer finds that you are not eligible for asylum and you are in the United States illegally, the Asylum Officer will place you in removal proceedings and refer your application to an Immigration Judge for a final decision. Immigration Judges also decide on removal if an applicant is found ineligible for asylum and is illegally in the United States. If you are in valid immigrant or nonimmigrant status and the Asylum Officer finds that you are not eligible for asylum, the Asylum Officer will send you a notice explaining that the BCIS intends to deny your request for asylum. You will be given an opportunity to respond to that notice before a decision is made on your application.

 


There are numerous immigration laws that could result in the denial of this visa if not properly prepared.  If the petition is put together correctly and professionally by a qualified immigration law firm, the chances of approval is greatly increased.

Can I Travel Outside the United States?

If you are applying for asylum and you want to travel outside the United States, you must receive advance permission before you leave the United States in order to return to the United States. This advance permission is called Advance Parole. If you do not apply for Advance Parole before you leave the country, you will abandon your application with the BCIS and you may not be permitted to return to the United States. If your application for asylum is approved, you may apply for a Refugee Travel Document. This document will allow you to travel abroad and return to the United States. For more information, see How Do I Get a Travel Document?.

Will I Get a Work Permit?

Asylum applicants can not apply for employment authorization at the same time they apply for asylum. Rather, you must wait 150 days after the BCIS receives a complete application before you can apply for employment authorization. The BCIS has 30 days to either grant or deny your request for employment. Please see How Do I Get a Work Permit? for more information.

How Can I Find Out About the Status of My Application?

Please contact the BCIS Asylum Office that received your application. You should be prepared to provide the BCIS staff with specific information about your application. Please click here for complete instructions on checking the status of your application. Click here for information on BCIS offices.

How Can I Appeal?

Applicants will be interviewed by an Asylum Officer or an Immigration Judge. The Asylum Officer will either approve your application or refer it to an Immigration Judge for a final decision. If the Immigration Judge denies your asylum application, you will receive a letter telling you how to appeal the decision. Generally, you may appeal within 33 days of receiving the denial. After your appeal form and a required fee are processed, the appeal will be referred to the Board of Immigration Appeals in Washington, D.C.

 


There are numerous immigration laws that could result in the denial of this visa if not properly prepared.  If the petition is put together correctly and professionally by a qualified immigration law firm, the chances of approval is greatly increased.

What is the ABC settlement agreement?

In 1985, a group of religious organizations and refugee advocacy organizations filed a class action lawsuit in federal court against the Bureau of Citizenship and Immigration Services (INS), the Executive Office for Immigration Review (EOIR) and the United States Department of State (DOS). The lawsuit is known as American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) (initially known as American Baptist Churches of the U.S.A. v. Meese), and is commonly referred to as the ABC lawsuit. A federal judge subsequently certified a class of Guatemalan and Salvadoran nationals as plaintiffs in the lawsuit. The plaintiffs alleged, among other things, that the BCIS , EOIR and DOS engaged in discriminatory treatment of asylum claims made by Guatemalans and Salvadorans. In 1990, the government and attorneys representing the certified class settled the class action lawsuit. The ABC settlement agreement was approved by a federal court in January 1991. The ABC settlement agreement provides that an eligible class member who registers for benefits and applies for asylum by the agreed-upon dates (these deadlines were initially defined in the settlement agreement, but the asylum filing deadlines were later extended by agreement of the parties) is entitled to an initial or de novo asylum interview and adjudication under the asylum regulations published July 27, 1990, which became effective October 1, 1990, and special provisions of the settlement agreement.The settlement agreement also contains special provisions regarding employment authorization and detention of eligible class members.

What are the benefits of the ABC settlement agreement?

Guatemalans and Salvadorans who are eligible for benefits of the settlement agreement are entitled to the following benefits:

Stay of Deportation (Removal)

No eligible class member may be deported (or removed) until he or she has had an opportunity to obtain the benefits of the Settlement Agreement.

De Novo asylum interview and decision by an BCIS Asylum Officer under the 1990 asylum regulations

A de novo asylum interview and decision means a new interview and decision, irrespective of any prior decisions on the asylum claim. This means that, even if an ABC class member who is eligible for ABC benefits was denied asylum before the implementation of the ABC settlement agreement, the class member could have a new determination on eligibility for asylum by an asylum officer. Under the ABC settlement, the procedures for making the asylum determination are governed by the 1990 asylum regulations, which are different from the current asylum regulations, as well as special procedures explained in the settlement agreement itself. In particular, the 1990 regulations require an asylum officer to send any applicant found ineligible for asylum a notice explaining the reasons why the applicant has been found ineligible. The applicant then is given a period of time to respond before a final decision is made on his or her asylum application.


Detention restrictions

The ABC settlement agreement restricts the BCIS ‘ detention authority over eligible class members. According to the settlement agreement, an eligible class member may be detained only under the following circumstances:

The class member has been convicted of a crime involving moral turpitude for which the sentence actually imposed exceeded a term of imprisonment in excess of six months; or The class member poses a national security risk; or The class member poses a threat to public safety.
A likelihood to abscond is not a reason to detain an eligible class member. However, the BCIS may impose a semi-annual reporting requirement upon ABC class members deemed likely to abscond. Also, mandatory detention provisions enacted by Congress in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) may require detention of ABC class members in other situations, as well.


Employment Authorization

Class members who are eligible for ABC benefits and who apply for asylum and employment authorization are entitled to employment authorization without regard to the “non-frivolous” standard that was required under the 1990 regulations, if they pay a fee generally applicable to employment authorization applications. If no fee is paid, the request is decided under the “non-frivolous” standard.

A request for employment authorization made by a class member eligible for ABC benefits must be decided within 60 days of filing. If the request is not adjudicated within 60 days of filing, the applicant is entitled to immediate employment authorization.

Eligibility for Benefits of the Settlement Agreement (Definition of class member, registration deadlines, asylum filing deadlines, bars to eligibility)
Who is eligible for ABC benefits?

To be eligible for ABC benefits, an applicant must meet three requirements. The applicant must be a class member
have registered for ABC benefits by the agreed upon date and have applied for asylum by the required date.
A class member who meets these three requirements may nonetheless be ineligible for benefits if he or she has been convicted of an aggravated felony or was apprehended at the time of entry after December 19, 1990.

Who is an ABC class member?

Class members` are defined solely by nationality and entry date. ABC class members are defined as:

All Salvadorans physically present in the United States on or before September 19, 1990, and
All Guatemalans physically present in the United States on or before October 1, 1990.
Continuous presence in the United States before or since these dates is not required. For example, if a Guatemalan entered the United States in July of 1990, returned to Guatemala in 1992, and reentered the United States in 1996, the individual is still an ABC class member and will be eligible for ABC benefits so long as he or she was not apprehended at the time of reentry in 1996 and meets the other eligibility requirements.

What is ABC registration?

To be eligible for ABC benefits, a Guatemalan or Salvadoran class member must have directly registered for ABC by sending an ABC registration form to the BCIS ABC Project post office box in Washington, D.C. by the date agreed upon by the parties to the settlement agreement. A Salvadoran class member may also have registered by applying for Temporary Protected Status (TPS) by the required date. Guatemalans and Salvadorans had different registration dates, as follows:

Guatemalans: Must have sent an ABC registration form to the ABC Project post office box in Washington, D.C. on or before December 31, 1991.
Salvadorans: Must have sent an ABC registration form to the ABC Project post office box in Washington, D. C. or applied for TPS on or before October 31, 1991.
What were the deadlines for applying for asylum under the ABC settlement?

To be eligible for ABC benefits, a class member must have applied for asylum within a specified period of time. Those class members who had not applied for asylum by the time of the settlement were required to file for asylum by the following cut-off dates:

Guatemalans: The class member must have filed an asylum application on or before January 3, 1995.
Salvadorans: The class member must have applied for asylum on or before January 31, 1996 [The BCIS then extended a grace period to February 16, 1996 for processing purposes], or within 90 days from issuance of a Notice 5.
Class members who had already applied for asylum at the time of the settlement were entitled to file a new asylum application, but were not required to do so. For example, if a class member applied for asylum in 1988, he or she was not required to file another asylum application, even if the initial application had been denied.

What is Notice 5?

As required by the settlement agreement, the BCIS sent a notice to Salvadorans who had registered for the first grant of TPS (regardless of whether they had subsequently re-registered for TPS or registered for Deferred Enforced Departure — DED). This notice is referred to as Notice 5 and was sent at the end of July 1995.

Notice 5 informed Salvadoran class members who applied for TPS that:

they had a right to new asylum adjudications; in order to remain eligible for ABC benefits, they must apply for asylum by January 31, 1996, if an asylum application was not already on file with the BCIS or EOIR; and they had the right to file a new application, even if they had an asylum application pending before the BCIS or EOIR, but were not required to do so.


If the BCIS determines that it did not send a Notice 5 to a Salvadoran who applied for TPS or that the notice was not sent to the last address provided by such a person to the BCIS , the BCIS will provide that person with a Notice 5 and give him or her 90 days from the date of notice to apply for asylum under the ABC settlement agreement.

Are there any bars to eligibility for ABC benefits, if the basic eligibility requirements are met?

Yes. The settlement agreement specifically excludes two classes of individuals from eligibility, even if they meet all the basic requirements, such as class membership, registration and asylum filing requirements.

First, any class member who has been convicted of an aggravated felony, as defined in section 101(a)(43) of the Immigration and Nationality Act (INA) is ineligible for ABC benefits.

Second, any class member who is apprehended at the time of entry into the United States, after December 19, 1990, is ineligible for ABC benefits.

If you are otherwise eligible for ABC benefits, but a bar applies, the BCIS will give you a letter explaining that you have been found ineligible for ABC benefits. The BCIS cannot remove you from the United States for 30 days from the date of that notice, unless the removal is based on an aggravated felony conviction. This is to give you time to challenge the finding if you think it is incorrect.

If I am eligible for ABC benefits are my spouse and children eligible too?

Not necessarily. Each person must independently establish eligibility for ABC benefits. This means that your spouse or child may be eligible for ABC benefits only if he or she is a class member, has registered for ABC, and has met the applicable deadline for applying for asylum.

To be a class member, your spouse or child must be a 1) Guatemalan national who entered the United States on or before October 1, 1990, or 2) a Salvadoran national who entered the United States on or before September 19, 1990.

To register, your spouse or child must have individually registered for ABC benefits. Your registration for yourself will not count for registration for your spouse or child.

If your spouse or child was properly included in your asylum application by the applicable deadline, that will count as having met the filing deadline. A dependent will also be considered to have met the asylum filing deadline if the dependent, though not initially included on the principal’s asylum application, was properly included in the principal’s asylum application before the expiration of the filing deadline. Your spouse or child could also have met the filing deadline by submitting his or her own asylum application by the filing deadline.

What if a spouse or child is no longer eligible to be included as a derivative on an asylum application?

A dependent who is no longer eligible to be included as a derivative on a principal’s asylum application may still be eligible for ABC benefits, so long as the dependent is a registered ABC class member who was properly listed as an included dependent on a principal asylum application prior to the applicable filing deadline. To retain ABC benefits, the dependent will be required to file his or her own principal asylum application within 90 days of being notified that he or she has lost derivative status.

When will I be scheduled for an ABC asylum interview?

The BCIS has temporarily suspended asylum interviews of many individuals who are eligible for ABC benefits pending receipt by the BCIS of a Form I-881 application for suspension of deportation or special rule cancellation of removal (NACARA 203). If you are eligible for ABC benefits and do not wish to submit an I-881 and want to have an ABC asylum interview, please submit a written request for an ABC interview to the Asylum Office that has jurisdiction over your asylum claim. If you have submitted an I-881 to the BCIS , the BCIS will schedule your ABC asylum interview at the same time you are scheduled for your I-881 (NACARA 203) interview. The BCIS continues to interview those ABC eligible applicants who are being detained.


There are numerous immigration laws that could result in the denial of this visa if not properly prepared.  If the petition is put together correctly and professionally by a qualified immigration law firm, the chances of approval is greatly increased.

Convention Against Torture in Los Angeles

Generally, if you will be tortured, imprisoned, or persecuted for various reasons upon returning to your home country, you may qualify for relief under the Convention Against Torture (CAT). You can only apply for this form of relief if you are in Removal or Deportation Proceedings.

How to Apply

The implementation of CAT is from an International Treaty which the United States has agreed to be a country subject to the provisions of this treaty. It is officially known as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984 entry into force 26 June 1987, in accordance with article 27 (1). While it has been around for some time, it was only recently that the United States recently ratified its provisions.


There are numerous immigration laws that could result in the denial of this visa if not properly prepared.  If the petition is put together correctly and professionally by a qualified immigration law firm, the chances of approval is greatly increased.

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