In this week's Consulta Migratoria® column, I answer a question from a reader who wants to help her cousin who wants to apply for asylum while in a detention center.
Each case is different and the answers vary depending on the immigration history of each person. Here I provide general answers to your questions. Please consult with an immigration attorney to receive personalized legal advice before beginning any process.
This is the column:
I am serving in the United States armed forces. My family is from El Salvador and in the past five years we have lost two of my cousins to gang violence in the country. The brother of one of my cousins who passed away came to the United States fleeing death threats from the gangs. He is now in immigration detention in San Diego. My cousin is Salvadoran, 23 years old and wants to apply for political asylum.
Can I ask my cousin for help if I am in the U.S. military? Do I need to hire a lawyer to help my cousin? -Rachel B.
Raquel, my sincere condolences on the death of your cousins. You must act immediately to help your cousin with his immigration case.
You cannot file a family petition on behalf of your cousin, because immigration law does not allow it. But you can help him or her get legal representation, the necessary documentation to file the asylum application, and shelter him or her when he or she is released from detention.
The fact that you are in the military could be a factor in helping your cousin be released from detention if you take responsibility for him.
Asylum cases are very difficult and many of them are rejected. It is extremely important that your cousin consult with a licensed and experienced immigration attorney or federally accredited representative before filing an asylum application.
Make sure that the legal professional you hire is not a notario or an immigration consultant. It is very common for people not authorized to practice law in the United States to wrongly advise undocumented immigrants to seek legal status through this route, defrauding them and misleading them about their chances of success.
Requirements to apply for asylum
Your cousin must show that while living in El Salvador he/she was a victim of persecution or fears future persecution because of his/her race, religion, nationality, political opinion or membership in a particular social group. These are the only categories of relief that currently exist.
You will have to start an asylum case within one year from the date you arrived in the U.S., unless there are valid reasons for not acting in time. There is no fee for filing.
Your cousin must file an Application for Asylum and Withholding of Removal with the federal government. His or her application will likely be considered a defensive asylum application because he or she is in the custody of U.S. Immigration and Customs Enforcement (ICE) and in removal proceedings.
If your cousin is married and has unmarried children under the age of 21, he or she may include them on the application. If for some reason you did not include your family on the application when you submitted it, you may do so at any time, as long as it is before a final decision is made on your case.
You will only be able to apply for employment authorization 150 days after you submit your completed application.
If his case is approved, your cousin can apply for permanent residence a year later. He should do so as soon as that deadline passes, as the circumstances that helped him obtain asylum could change and void his eligibility for permanent residency.
Risks of applying for asylum if you are ineligible
If the immigration court denies your cousin's asylum application, he may appeal the decision to the Board of Immigration Appeals. But he must act within the time limits set by law or he will lose his right to appeal.
Your cousin should not lie when applying for refugee status. Immigration law severely punishes people who file frivolous applications. An application is frivolous if key information in the application is false or fraudulent.
For more information and immigration tips, read my blog InmigracionHoy.com.
Send your questions to preguntas@consultamigratoria.com. Include detailed information about your situation to better answer your questions.
Nelson A. Castillo, Esq. is an immigration attorney and author of La Tarjeta Verde: Cómo Obtener la Residencia Permanente en los Estados Unidos (Green Card: How to Obtain Permanent Residence in the United States) and presenter of immigration television segments of The Lawyer at Your Side in NY1 News. He is a past President of the Hispanic National Bar Association and current President of the Westlake South Los Angeles Neighborhood Council. For information on how to consult with Dr. Castillo, click here. click here.
The purpose of this column is to provide general information. There can be no guarantee or prediction as to what will be the outcome of the information presented by Dr. Nelson A. Castillo. The information should not be taken as legal advice for any individual, case or situation. Consult with an immigration attorney for personalized legal advice before beginning any immigration proceedings.
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