New Orleans

Immigration Attorney for Humanitarian Benefits

When wars, persecution, and other crises occur throughout the world, many seek shelter in the United States of America.

At Pelton + Balducci, we have successfully handled many asylum cases.

When wars, persecution, and other crises occur throughout the world, many seek shelter in the United States of America.

At Pelton + Balducci, we have successfully handled many asylum cases.

We have had the privilege to represent asylum seekers from all over the world, including individuals from Honduras, El Salvador, Guatemala, Mexico, Nicaragua, Venezuela, Peru, Turkey, Uzbekistan, Iran, India, Cameroon, Saudi Arabia, The Democratic Republic of the Congo, Gabon, Bangladesh, and Syria. We have also represented many children and members of the LGBTQIA community.

Asylum is a constantly evolving area of the law that requires ongoing research and study. We work diligently to stay abreast of all relevant developments to timely analyze how they will impact each applicant.
“Marco Balducci is a great attorney! It was never an issue trying to get in touch with him when I had a question or concern. I am now able to live in peace with my family.”
- Osman M.
Asylum is a constantly evolving area of the law that requires ongoing research and study. We work diligently to stay abreast of all relevant developments to timely analyze how they will impact each applicant.
“Marco Balducci is a great attorney! It was never an issue trying to get in touch with him when I had a question or concern. I am now able to live in peace with my family.”
- Osman M.

About Asylum & Related Relief From Persecution

To qualify for asylum, an applicant must show that they meet the definition of a refugee, set forth in the Immigration and Nationality Act.
The Act reads as follows (with emphasis added):
[A]ny person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution...

The idea behind the Act is to offer a safe refuge to people who cannot return to their home country because they were or fear they will be persecuted for any of the following five protected characteristics:

  • Race
  • Religion
  • Nationality
  • Membership in a particular social group
  • Political opinion

The 4th protected characteristic (particular social group) is an area of the law that varies by the circuit court jurisdiction in which the application is adjudicated and is constantly in flux. We have won many cases based on particular social group arguments, including claims regarding:

  • Family membership
  • Domestic violence / gender
  • Abuse of children
  • Sexual minority status
  • Witnesses, etc.

It’s important to note that this form of relief is only available to individuals who are already inside the United States.

Asylum Application Process

The Application for Asylum must be filed within the first year of the applicant’s entry to the United States. (However, there are significant exceptions available to this rule known as the “one year filing deadline.”)
A successful applicant has a few things to prove in their application:
  • An applicant must show that they have either suffered past persecution on account of a protected characteristic and/or that they have a well-founded fear of persecution on account of one of the protected characteristics listed above.
  • A successful asylum applicant should also show that the harm they suffered (or would suffer if they returned) was on account of the protected characteristic, ie. was the reason for their persecution. This is often one of the most challenging elements of the claim to satisfy, and frequently relies on the credible testimony of the applicant alone, as most individuals fleeing their country do not have the luxury of gathering documents, photographs or other evidence.Credibility is a crucial threshold issue in asylum cases. One of the biggest obstacles to this credibility is often the applicant’s inability to recall specific dates or details, due to the significant trauma they have suffered. Because of this, psychological and forensic evaluations can be key in documenting not only the past harm, but the ways in which the applicant’s memory may have been affected by their past persecution.
  • The applicant must also show that they have a well-founded fear of persecution in the future, or that they are still in danger if they were to return to their country. If the applicant has shown past persecution, they will benefit from a presumption of well-founded fear. However, this presumption may be rebutted if it can be shown that the applicant could relocate internally within their country to avoid future harm, or that the endangering circumstances have changed or no longer exist.

Next Steps in the Asylum Process

There are two venues in which a claim for asylum may be presented:
  • With the U.S. Citizenship and Immigration Services (USCIS), or 
  • Before the Immigration Judge in Immigration Court.

In either scenario, an asylum seeker is eligible to apply for work authorization. The Trump Administration sought to significantly restrict the ability of asylum applicants to apply for work authorization; however, important classes of people are exempt from these restrictions and may apply for work authorization 150 days subsequent to filing their application for asylum.

If an individual is not yet in removal proceedings, they are eligible to file their I-589 Application for Asylum with USCIS. This method is preferable, as the USCIS interview is meant to be a non-adversarial process. (Children classified as Unaccompanied Alien Children are eligible to file their applications for asylum with USCIS, despite being in removal proceedings.)

Once the application is received, the applicant will receive an appointment for “biometrics.” During this appointment, they will be photographed and their fingerprints will be taken.

The next step is the interview, which will take place at the Asylum Office. The local asylum office is located in Metairie, Louisiana. This office has jurisdiction  over cases filed by applicants who live in the Greater New Orleans Area, as well as in the rest of Louisiana, Arkansas, Mississippi, and Tennessee. During the interview, the applicant is allowed to be represented by their immigration attorney. In addition to the applicant, their attorney, and the asylum officer, there will also be an interpreter present in the room or on the phone (if needed).

The asylum interview is conducted in three parts:

1. First, the officer will review the I-589 application form with the applicant to verify all of their biographic, address, and employment information.
2. Second, the officer will ask for testimony from the applicant regarding their fear of returning to their home country, and past events relating to that fear.
3. Lastly, the officer will discuss with the applicant the next steps in the process (how they will receive their decision – either by mail or in person).

If an asylum seeker is not eligible to file their application for asylum with USCIS because they are in removal proceedings, their case will be heard by the Executive Office for Immigration Review Immigration Court. This type of application is known as defensive asylum because it is being raised as a defense against the individual’s removal proceedings. 

In the Immigration Court context, individuals are referred to as “respondents.” The same laws and regulations described above apply to asylum applications in court. However, an important distinction is that the courtroom process is more adversarial. This means that the respondent must present their case in front of an Immigration Judge and be subject to cross examination by an attorney from the U.S. Immigration and Customs Enforcement (ICE) Office of Chief Counsel. The respondent will also be subject to questioning by the Immigration Judge.

If asylum is granted by USCIS or by the Immigration Judge, the individual will have status as an asylee for one year, at which time they will be able to apply for adjustment of status to become a lawful permanent resident (green card holder). 

It is imperative that an individual granted asylum does not return to their country of origin, as this could lead to revocation of their asylum status. A grant of asylum to an individual in removal proceedings will also serve to terminate their removal proceedings. 

Winning a claim for asylum can be life-changing not only for the applicant, but for their family members who qualify as derivatives, such as children and spouses who are in the U.S. After the grant of asylum, the asylee becomes eligible for many benefits, including conferring asylum status on other family members.

Temporary Protected Status

There is another avenue for people seeking protection in the United States: Temporary Protected Status (TPS).

As the name suggests, this method is a temporary way to stay in the U.S., and is only a short-term solution available to applications from certain countries designated by the U.S. to have unstable conditions. These conditions may include political unrest or armed conflict, natural disasters (such as earthquakes or hurricanes), or other conditions making it impractical or unsafe to return.

The current countries from which citizens could be eligible for TPS are as follows:
  • Burma
  • El Salvador
  • Haiti
  • Honduras
  • Nepal
  • Nicaragua
  • Somalia
  • South Sudan
  • Sudan
  • Syria
  • Venezuela
  • Yemen
  • Burma
  • El Salvador
  • Haiti
  • Honduras
  • Nepal
  • Nicaragua
  • Somalia
  • South Sudan
  • Sudan
  • Syria
  • Venezuela
  • Yemen

People who receive TPS status are not required to leave the U.S. as long as their country’s TPS designation continues and are granted work authorization for temporary periods. Eligible individuals can apply for TPS with USCIS.

Some of the eligibility requirements include:
  • Being continuously physically present in the U.S. since the most recent designation date of their home country;
  • Being a continuous resident in the United States since the date specified for their country;
  • Not being convicted of any felony or two or more misdemeanors in the United States; and
  • Not being subject to one of the bars to asylum.

However, it’s important to note that TPS does not lead to permanent resident status. 

Because the deadlines, requirements, and other specific information about applicants from these countries may vary and change rapidly, we recommend getting in touch with our team at Pelton + Balducci as soon as possible. Our immigration attorneys are happy to discuss TPS with anyone who believes they are eligible, as well as determining any possible paths to permanent residency once their TPS expires.

Benefits for Survivors of Crimes and Domestic Violence

Undocumented immigrants are among the most vulnerable members of our communities. Recognizing that abusers and criminals often take advantage the vulnerability created by a lack of immigration status, Congress created important benefits for survivors of domestic violence and crime in the Violence Against Women Act (VAWA).

VAWA Self-Petition

Unfortunately, the family-based immigration process gives abusive spouses significant leverage over their victims.  They can threaten their undocumented spouses and their children with deportation if they seek to escape the abusive relationship or to protect themselves. They may also refuse to file petitions for their family members unless they comply with the abuser’s demands.

The VAWA self-petition allows abused spouses of US citizens or lawful permanent residents to petition for themselves.  This empowers abused spouses (and their children) to escape the control of their abusers in order to obtain lawful immigration status. It is important to note that parents who are abused by adult US citizen children may also file VAWA self petitions, and these self-petitions are available to abused individuals irrespective of gender.

T and U Nonimmigrant Status

VAWA also created important protections for trafficking victims (T nonimmigrant status) and  victims of certain enumerated serious crimes (U nonimmigrant status). Congress created these benefits to encourage undocumented victims of crime to report the criminal activity that they had suffered and to strengthen the ability of law enforcement to arrest criminals in the United States.

Petitioners for T nonimmigrant status must prove that they are victims of a “severe form of trafficking” and are in the United States on account of the trafficking activity. They must also demonstrate that they have complied with any reasonable request from a law enforcement agency for assistance in the investigation or prosecution of human trafficking and that they would suffer extreme hardship if they were to be removed in the United States.

Petitioners for U nonimmigrant status must prove that they were victims of certain crimes specified by statute, that they have suffered significant abuse as a result of the criminal activity, and that they have cooperated with law enforcement in the investigation or prosecution of the activity. Petitions for U nonimmigrant status also require a law enforcement certification completed on Form I-918 Supplement B in which a law enforcement agency or judge involved in the case confirms the petitioner’s victimization.

Both T and U petitioners may petition for their spouses and for their children under 21-years-old.  Successful T and U petitions confer protection from removal, authorization to work, and provide a path to lawful permanent residency (and ultimately citizenship).

Schedule a Consultation to get started with a New Orleans immigration attorney

At Pelton + Balducci, we can help our clients navigate through the challenges of the asylum, VAWA self-petitions, and petitions for U and T nonimmigrant status by utilizing our combined 50 years of field experience to passionately and meticulously advocate on their behalf. Our team is fluent in both English and Spanish, and we can work with translators as needed. Call (504) 708-5400 today to schedule your consultation so we can get started on your case.

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