Lawyers Manual - Unified Court System

Representing Immigrant Victims of Domestic Violence 331
imperative. The regulations mandate that an applicant be interviewed and
receive a decision within 150 days of filing her application or she will become
eligible to apply for employment authorization. 107
If the application is granted, the applicant will be designated an asylee,
along with any immediate family members included in her application, receive
employment authorization, and become eligible to apply for adjustment of status
to permanent resident after one year. 108 In addition, she may petition for children
living abroad who were not included in the original asylum application. 109
Asylum In Removal Proceedings
If the application is not approved and the applicant does not have valid
immigration status, she will receive a “Notice of Referral” and be placed in
removal proceedings, where an immigration judge will hear testimony on the
filed application, and a trial attorney will cross-examine her. If the client had not
filed for asylum affirmatively, but only raised the claim after being “picked up”
and placed in removal proceedings, she may file the application directly with
the immigration court. If the court grants the application, the asylee has the
same status as if she had been granted asylum affirmatively. If the application is
denied, the applicant may appeal the decision to the Board of Immigration
Appeals, 110 and, subsequently, to the US Court of Appeals. 111
The One-Year Filing Deadline and Withholding of Removal
A grant of asylum offers the promise of sanctuary and stability to the
woman fleeing from gender-based persecution. That promise, however, has
become increasingly elusive thanks to a one-year filing restriction imposed by
Congress in 1996. Whereas previously, a victim could seek asylum at any point
during her stay in the United States, including while in proceedings before the
immigration judge, she now must file an application within one year of her
arrival to the United States. 112 Limited exceptions exist to the one-year bar, and
an applicant may file late if she experienced either “changed circumstances” or
“extraordinary circumstances.” 113 In some cases, a victim may successfully
assert that the abuse suffered constituted such an extraordinary circumstance to
prevent a timely filing. Others victims, unable to overcome the strictures of the
filing deadline, have sought relief in the form of “withholding of removal.”
Withholding of Removal
Like asylum, withholding of removal provides protection to individuals
fleeing persecution based upon one of the five enumerated categories. 114 The
similarities between the two categories of relief quickly diverge, however.
While an asylum applicant need only demonstrate a “well-founded fear,” an