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212(c) Deportation Relief Expanded.

Posted on June 17, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have been in the U.S. for the last 25 years and committed only 1 crime in 1996. However, I am in deportation now and they claim that I am an aggravated felon and not eligible for 212(c) relief and that I will be deported for the rest of my life. I committed the crime in August of 1996, and plead guilty the following October. Is there anything I can do to avoid deportation?

Answer: If you happen to live in the jurisdiction of the 9th Circuit you are in luck. If you live elsewhere, I would get a good immigration attorney to fight for you up to the appellate level to make the same similar arguments that were made in the newly published 9th circuit case. First, it is necessary to have a little background. In 1996, Congress passed IIRAIRA which expanded quite considerably the definition of what crimes constitute an aggravated felony. It also repealed or took away 212(c) relief. This is a type of relief whereby if a person had a certain number of years in the U.S. as a lawful permanent resident and committed a crime that was not an aggravated felony (basically any crime that they received less than five years of jail time), they could apply for this relief in deportation proceedings. If they won, they would get their Green Card back and could remain in the U.S.

From 1996 until sometime in 2001, every court was denying 212(c) relief because it was repealed by IIRAIRA. However, the Supreme Court of the United States came out with a case called St… Cyr. Which essentially stated that it was unconstitutional to retroactively apply IIRAIRA to these people. It stated that if someone PLEAD guilty before April of 1996, that they could now apply for 212(c).

While St.. Cyr was a great case, it left a group of people out of its ruling that were similarly situated, but did not fall under the exact parameters of this case. It was those people who COMMITTED the crime before the passage of IIRAIRA, but were CONVICTED after the passage. In these cases, these people for all these years have not been eligible for 212(c) and have been deported for the rest of their lives.

Question: What did this new case rule?

Answer: Cordes v. Gonzales held that post-IIRIRA case law (namely INS v. St. Cyr) limiting the availability of §212(c) relief, to legal permanent residents who had not committed deportable offenses at the time of their conviction offends equal protection when §212(c) is available to similarly situated permanent residents who committed deportable offenses at the time of their conviction. The “only discernible difference” between the two groups, the court said, is that “those entitled to section 212(c) relief faced deportation at the time they entered their guilty pleas.” “This difference, however, is ‘irrelevant and fortuitous’ since the [immigrant in this case] quite obviously faces deportation now,” the court said. The court also found there is no rational basis for the disparate treatment of lawful permanent residents who are eligible for §212(c) relief under St. Cyr based on the “ironic fortune of facing the prospect of deportation at the time that they entered their guilty pleas” and permanent residents, like Petitioner, who are not eligible simply because their crime was not serious enough to render them deportable at the time they pled guilty. The court said:

“Allowing permanent residents who have committed worse crimes than Cordes to apply for section 212(c) relief, while denying the same opportunity to Cordes, does not achieve Congress’ express purpose behind the expanded definition of aggravated felony and its retroactive application: to expeditiously remove criminal aliens and make it more difficult for them to obtain relief from removal. Indeed, the disparate grant of section 212(c) relief here does not increase the total number of criminal aliens subject to removal, as Congress intended, but rather perversely increases only the number of less dangerous criminals subject to removal.”

Thus, this case now opens up the possibility of applying for 212(c) relief to those previously not eligible (at least in the 9th circuit court of appeals) and gives a much better fighting position to those in other jurisdictions to fight on this same basis.

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PERM: LULAC and CSS are still not over

Posted on June 8, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I think I’m under LULAC, but never knew I could file again. I believed I missed the deadline. Is there anything I could do?

Answer: Yes. U.S Citizenship and Immigration Services (USCIS) announced today that the filing deadline for applications for legalization under the terms of the CSS and LULAC (Newman) settlement agreements is extended from May 23, 2005 until December 31, 2005.

This is not a new amnesty program. The CSS and LULAC (Newman) settlement agreements allow for those who meet certain requirements to apply or reapply for Temporary Resident status under the 1986 amnesty program of Section 245A of Immigration and Nationality Act.

Eligible individuals may apply by submitting a Form I-687, Application for Status as a Temporary Resident under Section 245A of the Immigration and Nationality Act, and a CSS/ LULAC (Newman) Class Membership Worksheet.

Question: What are the basic requirements to be eligible?

Answer: 1) You had to live in the United States unlawfully from before January 1, 1982, to a date between May 5, 1987, and May 4, 1988, when you went to an office of the Immigration Service or a Qualified Designated entity to apply for legalization.

2) You, your parent or your spouse visited an INS office or Qualified Designated Entity between May 5, 1987, and May 4, 1988, to apply for legalization.

3) The INS or QDE told you that you were ineligible for legalization because you had traveled outside the United States without INS permission. You, your spouse or your parent returned to the United States with an immigration issued document such as a Student Visa, Visitor Visa or some other Immigration issued document.

4) You do NOT need to have previously “registered” as a LULAC class member or even had a completed application. However, you did need to go the QDE in the specified time period.

Question: What type of evidence do I need to present to win under this LULAC Settlement agreement?

Answer: Clearly, many people do not have the original documents, or even any stamped documents from Immigration. Usually, if the former INS had rejected the application because of what is known as ‘front-desking’, the person was just turned away. Thus, it is not possible in many instances for an applicant to prove that they were rejected. However, the LULAC settlement specifically states that persons who fall under this settlement may establish eligibility for legalization by way of declarations, and not only by original documents. The settlement also provides class members the right to appeal to a “special master,” a judicial officer with the authority to correct the CIS’s errors in the event the agency does not decide a class member’s legalization application promptly, fairly, and in accordance with the settlement’s guidelines.

Question: When can I apply for this?

Answer: The settlement provides that CIS must begin accepting legalization applications no later than May 24, 2004, but the government might decide to begin the one-year application somewhat earlier. This means that individuals will now have until December 2005, to apply for legalization under the settlement.

Question: Is there any other previous amnesty related provisions that this settlement agreement is applicable toward?

Answer: Actually there are others. Catholic Social Services is another program that is applicable to this settlement agreement. There are a couple of differences. First, you would have had to travel outside the U.S. without authorization after November 6, 1986. Second, you returned to the U.S. without permission.

Therefore, since it has been extended, do not let the deadline pass again if you qualify.

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Removal Proceedings – What is it?

Posted on June 3, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I am now in removal proceedings. I also have many friends who are in the same type of removal proceedings. However, all of us have different situations. Under what basis can we be put into removal proceedings?

Answer: The Executive Office for Immigration Review (EOIR), an agency of the Department of Justice, oversees three components which adjudicate matters involving immigration law matters at both the trial and appellate level. Under the Office of the Chief Immigration Judge, more than 200 Immigration Judges located in 53 Immigration Courts nationwide conduct proceedings and decide individual cases. The agency includes the Board of Immigration Appeals (BIA), which hears appeals of Immigration Judge decisions, and the Office of the Chief Administrative Hearing Officer, which handles employment-related immigration matters.

Immigration Judges conduct removal proceedings, which account for approximately 80 percent of their caseload. Removal hearings are conducted to determine whether certain aliens are subject to removal from the country. Beginning April 1, 1997, the distinction between exclusion and deportation proceedings was eliminated, and aliens subject to removal from the United States were all placed in removal proceedings. Thus, the removal proceeding is now generally the sole procedure for determining whether an alien is inadmissible, deportable, or eligible for relief from removal. The Department of Homeland Security (DHS) is responsible for commencing a removal proceeding.

Removal proceedings generally require an Immigration Judge to make two findings: (1) a determination of the alien’s removability from the United States, and (2) thereafter deciding whether the alien is eligible for a form of relief from removal.

Usually at the beginning, an Immigration Judge conducts a bond redetermination hearing for aliens who are in DHS detention. The person in proceedings makes a request to the Immigration Judge to lower or eliminate the amount of the bond set by the DHS. These hearings are generally informal and are not a part of the removal proceedings. This decision can be appealed by either the alien or by DHS to the BIA.

Question: One of my friends actually already has their Green Card. Why would he be in removal proceedings?

Answer: An Immigration Judge can conducts a rescission hearing to determine whether a lawful permanent resident (LPR) should have his or her residency status rescinded because he or she was not entitled to it when it was granted. Additionally, it is possible for someone who is an LPR to commit a crime making them ineligible to keep their Green Card.

Question: What about someone who fears going back to their home country?

Answer: An asylum-only hearing will be used to determine whether certain aliens who are not entitled to a removal hearing but claim a well-founded fear of persecution in their home country are eligible for asylum. In normal circumstances, asylum claims are heard by Immigration Judges during the course of a removal hearing.

Thus, there are many different types of hearings that can be conducted. There is many times relief from removal proceedings, so you need to fight hard during the proceedings and do not let anyone walk over your rights.

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My child is a U.S. Citizen – and I didn’t even know!

Posted on June 2, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: We just petitioned our child after not seeing him in our home country for over 2 years. He will be coming to the U.S. as a Lawful Permanent Resident. When can we apply for citizenship for him?

Answer: On October 30, 2000, the Child Citizenship Act of 2000 (CCA) was signed into law. The new law permitted foreign-born children (including adopted children) to acquire citizenship automatically if they meet certain requirements. It became effective on February 27, 2001.

Question: Which Children Automatically Become Citizens Under the CCA?

Answer: Since February 27, 2001, certain foreign-born children of U.S. citizens (including adopted children) residing permanently in the United States acquired citizenship automatically. The term “child” is defined differently under immigration law for purposes of naturalization than for other immigration purposes, including adoption. To be eligible, a child must meet the definition of “child” for naturalization purposes under immigration law, and must also meet the following requirements: The child has at least one United States citizen parent (by birth or naturalization); The child is under 18 years of age; The child is currently residing permanently in the United States in the legal and physical custody of the United States citizen parent; The child has been admitted to the United States as a lawful permanent resident or has been adjusted to this status; An adopted child must also meet the requirements applicable to the particular provision under which they qualified for admission as an adopted child under immigration law. Acquiring citizenship automatically means citizenship is acquired by operation of law, without the need to apply for citizenship.

Question: Must an application be filed with USCIS to establish a child’s citizenship?

Answer: No. If a child qualifies for citizenship under the Child Citizenship Act, the child’s citizenship status is no longer dependent on USCIS approving a naturalization application. The child’s parents may, however, file an application for a certificate of citizenship on the child’s behalf to obtain evidence of citizenship. If a child satisfies the requirements listed above, he or she automatically acquires U.S. citizenship by operation of law either on the day of admission to the United States or on the day that the last condition for acquiring citizenship is satisfied.

Question: Will Eligible Children Automatically Receive Proof of Citizenship?

Answer: If the child falls under this provision, they will automatically receive a Certificate of Citizenship within 45 days of admission into the U.S. This program eliminates the need for the issuance of a Permanent Resident Card for newly entering children, since these cards are not applicable to U.S. citizens.

In other words, if the child falls under this provision of law, the moment they are admitted as a Lawful Permanent Resident, they are immediately considered to be a U.S. Citizen.

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Why am I penalized because my father became a U.S. Citizen?

Posted on May 27, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have been waiting many years to become a Lawful Permanent Resident. My father petitioned me many years ago. My priority date was almost current, and then my father became a U.S. Citizen. Afterwards, I actually had to wait many more years. He only became a U.S. Citizen because he thought it would speed up the process. Is there anything I can do?

Answer: Actually, the Child Status Protection Act (CSPA) had a provision that addressed your exact concern. On August 6, 2002, the President signed into law the Child Status Protection Act (CSPA), Public Law 107-208, 116 Stat. 927. Section 6 of the CSPA allows for unmarried sons or daughters of lawful permanent residents (LPRs) to remain classified as second preference aliens, even if the LPR parent naturalizes. In other words, this provision actually applies only to people from the Philippines at this point as in the rest of the world the priority date is years closer when the parent petitioner becomes a U.S. Citizen.

Section 6 of the CSPA provides for the automatic transfer of preference categories when the parent of an unmarried son or daughter naturalizes, but also provides the unmarried son or daughter the ability to request that such transfer not occur. There are certain instances when the visa availability dates are more current for the unmarried sons or daughters of LPRs than for the unmarried sons or daughters of United States citizens. In such instances, it would be to the advantage of the alien beneficiary to request that the automatic conversion to the first preference category not occur because a visa would become available sooner if the alien remained in the second preference category than if he converted to the first preference category. As of this date, the Department of State Visa Bulletin shows that visa availability in the first preference category is more current than for the second preference categories, except for beneficiaries from the Philippines. As such, it is anticipated that only beneficiaries from the Philippines will seek to take advantage of the CSPA.

Question: I heard about the CSPA and was told to write a letter that I wanted to go back to the 2nd preference, not to stay at the 1st preference which I automatically was move to at the time my father had petitioned me. I did not know who to write the letter to, but sent off such a letter requesting to be changed to 2nd preference. However, to date nothing has changed.

Answer: I agree that this has been a problem. In the past, we would write Immigration and they would tell us to write the National Visa Center. Then, we would write the National Visa Center and they would tell us to write Immigration. It was a game of finger pointing without any resolution. However, guidance from Immigration has just come out.

All beneficiaries in the Philippines wishing to opt out of the automatic conversion must file a request, in writing, addressed to the Officer in Charge, Manila. The Officer in Charge shall provide written notification, on official U.S. Citizenship and Immigration Services letterhead, of a decision on the beneficiary’s request to the beneficiary and to the Department of State’s visa issuance unit. If the beneficiary’s request is approved, then the beneficiary’s eligibility for family-based immigration will be determined as if his or her parent had never naturalized and they will remain a second preference alien.

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PERM: What to do about the Prevailing Wage?

Posted on May 18, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I know that PERM is the new way for Labor Certifications to be done. However, I am unclear how to determine what type of wage should be paid for the position. Can you clarify?

Answer: This would be known as the prevailing wage. This is typically the same wage that someone of similar type experience in a similar type job receives. The way of doing the prevailing wage is considerably different from the previous method of doing a Labor Certification. State Workforce Agencies (SWAs) will provide prevailing wage determinations to employers, but will no longer receive or process applications as they do under the current system. Each State has its own methods, but they will send back to the requester a written confirmation of what is the prevailing wage for this type of position.

One difference is that in the past, the employer could pay 95% of the prevailing wage. Now, the employer must pay 100% of the prevailing wage.

Question: I heard that in the past, the typical surveys from the government have only two levels of wages that were paid. First, was the no experience and next was the completely experienced. There was nothing in between these levels. Is that system still in place?

Answer: No. The new regulations have realized that it is not realistic to have only 2 levels of wages. Therefore, where a governmental survey is used to determine prevailing wage, such survey shall provide at least 4 levels of wages commensurate with experience, education, and the level of supervision. Where an existing government survey has only 2 levels as do most of the actual surveys at this point, 2 intermediate levels may be created by dividing by 3 the difference between the two levels offered, adding the quotient thus obtained to the first level, and subtracting that quotient from the second level.

This certainly sounds somewhat complicated. However, let us take an example. Suppose the position is for a computer programmer and the wage for the two levels is as follows: No experience is $30,000 per year and completely experienced is $70,000 per year. Under the approach stated above, we would take the difference between the two levels ($70,000 – $30,000) which would be $40,000 and divide that amount by 3. Thus, $40,000 divided by 3 would be about $13,333. Thus, the first level would remain $30,000. The second level would now be $30,000 plus $13,333 which would be $43,333. The third level would now be $70,000 less $13,333 which would be $57,666 and the fourth level would remain the same at $70,000. Therefore, now with the same government survey, it is now possible to have four different levels of wages which is much more realistic to correlate experience with pay.

Question: What if an employer does not want to use the SWA analysis of the prevailing wage?

Answer: It is possible to submit another private wage survey. However, it has several requirements and can be quite labor intensive to determine if it satisfies what is necessary to show the prevailing wage.

Question: What if I disagree with the prevailing wage given by the SWA?

Answer: You can appeal that determination. However, that will most likely considerably delay your PERM application. Therefore, you should strongly consider going with the SWA determination of the wage if it is in the ‘ballpark’ of what the wage should be.

Question: When must the employer start paying the prevailing wage?

Answer: It would be only after the Labor Certification has been certified and the prospective employee actually has his or her lawful permanent residence.

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What is PERM?

Posted on May 11, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I am planning on filing a Labor Certification and have heard about a PERM program. Can you shed some light on what this is?

Answer: Actually, the PERM program is going to be a much faster route for the Labor Certification. However, it is not yet here. But, there has been some guidance from top government officials on the progress of PERM. The Department of Labor expects the regulations to be published before the end of 2004. Afterwards, they expect the regulations to take effect in 60 days. However, they have made contingency plans if the regulations do not get published by the end of 2004.

Normally, a Labor Certification goes to the State Workforce Agency (SWA) first for processing before it goes up to the federal Department of Labor. With the event of PERM, the SWA’s will be taken out of the picture and the Labor Certification will be filed directly with the Department of Labor.

Question: What is the contingency plan if the regulations are not published by the end of 2004?

Answer: In 2005, the SWA’s will send their caseload to newly made centralized federal locations. Thus, the SWA’s can still accept cases (if the regulations are not published), but will not process them. They will only send them to the determined central federal locations for processing at the federal level. The backlog centers are in Philadelphia and Dallas. These centers are made for the sole purpose to reduce the backlog of Labor Certifications around the U.S. These backlog centers are temporary and are expected to be closed within two years. The goal is to get rid of the years of backlog cases by processing them through these backlog centers. As for permanent national centers, these will be located in Atlanta and Chicago and will be operational next year. These centers are expected to handle all future incoming Labor Certification cases.

Question: If the regulations do not go into effect on January 1, 2005, what must I do with my Labor Certification?

Answer: Remember that the SWA is the State Workforce Agency and this is the agency that normally would have done initial processing on the Labor Certification (which many times would last for several years before being sent to the Department of Labor.) The SWA will still accept the case. They will time-stamp the filing, but they will not process the case. They will then send the case to one of the two new regional processing centers in Atlanta or Chicago once they are up and running. As of now, there are basically DOL Labor Certification centers all across the nation. It appears these will all be consolidated into the two national centers mentioned.

In any event, there has already been one major shipment of backlogged cases to the temporary backlog centers and it is expected that the remainder will be shipped before March of 2005. It is certainly a new day for Labor Certifications. Hopefully, the years of waiting will come to a reasonable and happy end.

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What is PERM?

Posted on May 8, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I am planning on filing a Labor Certification and have heard about a PERM program. Can you shed some light on what this is?

Answer: Actually, the PERM program is going to be a much faster route for the Labor Certification. However, it is not yet here. But, there has been some guidance from top government officials on the progress of PERM. The Department of Labor expects the regulations to be published before the end of 2004. Afterwards, they expect the regulations to take effect in 60 days. However, they have made contingency plans if the regulations do not get published by the end of 2004.

Normally, a Labor Certification goes to the State Workforce Agency (SWA) first for processing before it goes up to the federal Department of Labor. With the event of PERM, the SWA’s will be taken out of the picture and the Labor Certification will be filed directly with the Department of Labor.

Question: What is the contingency plan if the regulations are not published by the end of 2004?

Answer: In 2005, the SWA’s will send their caseload to newly made centralized federal locations. Thus, the SWA’s can still accept cases (if the regulations are not published), but will not process them. They will only send them to the determined central federal locations for processing at the federal level. The backlog centers are in Philadelphia and Dallas. These centers are made for the sole purpose to reduce the backlog of Labor Certifications around the U.S. These backlog centers are temporary and are expected to be closed within two years. The goal is to get rid of the years of backlog cases by processing them through these backlog centers. As for permanent national centers, these will be located in Atlanta and Chicago and will be operational next year. These centers are expected to handle all future incoming Labor Certification cases.

Question: If the regulations do not go into effect on January 1, 2005, what must I do with my Labor Certification?

Answer: Remember that the SWA is the State Workforce Agency and this is the agency that normally would have done initial processing on the Labor Certification (which many times would last for several years before being sent to the Department of Labor.) The SWA will still accept the case. They will time-stamp the filing, but they will not process the case. They will then send the case to one of the two new regional processing centers in Atlanta or Chicago once they are up and running. As of now, there are basically DOL Labor Certification centers all across the nation. It appears these will all be consolidated into the two national centers mentioned.

In any event, there has already been one major shipment of backlogged cases to the temporary backlog centers and it is expected that the remainder will be shipped before March of 2005. It is certainly a new day for Labor Certifications. Hopefully, the years of waiting will come to a reasonable and happy end.

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If I stay, I will be killed

Posted on May 7, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I live in a country that is very dangerous. It is not democratic and I decided to protest against the government in order to try to make some democratic changes. I was in a protest rally. Unfortunately, the government sent its soldiers out and killed many people. I escaped. However, the government suspects that I was in the protest rally (as well as distributing e-mails and other pro-democracy pamphlets.) I am now afraid for my life. I went to the United States Consulate in my home country and got a visa to the United States I basically lied and said I just wanted to visit the United States I was desperate to get out of the country. Now I am in the United States Is there anything I can do?

Answer: You can certainly apply for asylum in the United States Asylum provides a haven in the United States for certain persecuted people of the world. The Attorney General may grant asylum to aliens present in the United States who have been the subject of persecution in their home country. Because of the broad rights granted to asylees, and concern that many people who apply for asylum do not actually qualify for it, all asylum applicants must meet stringent substantive and procedural requirements.

Question: How can I qualify for asylum?

Answer: To establish eligibility for asylum, you must show that you are a refugee. The term ‘refugee’ means any 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 on account of race, religion, nationality, membership in a particular social group, or political opinion.

Therefore, asylum is not just for those who apply for ‘political’ asylum. The United States opens the doors to persons whom are subjected to religious, nationality and other categories of persecution.

Question: I have not actually been persecuted in the past. I am just deathly afraid to go back because of what will happen to me. Is this a problem?

Answer: No. If you can show that you have a well founded fear of future persecution, then it is not necessary to show past persecution. If on the other hand, you were able to show past persecution, then it is presumed you will suffer future persecution. Thus, you have more of a hurdle to get over, but if you will be persecuted upon your return to your home country, you are certainly eligible to apply for asylum.

Question: If I am granted asylum, can my wife and children come to the United States with me and will I be able to work?

Answer: After an alien is granted asylum, he or she is called an asylee. His or her spouse and children may be granted permission to reside in the United States. An asylee will receive appropriate authorization to enable him or her to work in the United States. Finally, because asylum is a temporary status, the asylee can apply for other, more permanent, types of status in the United States.

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Past Persecution: You can still get Asylum

Posted on April 28, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I was persecuted in the past in my home country. The government came after me because I was a political activist and I spoke out about the corruption of the government. They brought me to prison, ransacked my home and threatened to tortured me and my family. I barely escaped to the United States and am now claiming asylum. However, the government has changed and they are unlikely to persecute me on the same grounds as in the past. In fact, while I will still suffer certain retribution by certain persons, I will not actually be persecuted based upon political opinion if I return to my home country. Do I still have a chance to win asylum in the United States?

Answer: Previously, you would have little chance of winning asylum. However, there has been a new regulation issued which addresses this very issue. The new provision provides for discretionary grants of asylum to victims of past persecution who no longer reasonably fear future persecution on account of a protected ground upon removal to his or her home country. Such an applicant “may be granted asylum, in the exercise of the decision maker’s discretion, if . . . [t]he applicant has established that there is a reasonable possibility that he or she may suffer other serious harm upon removal to that country.” In other words, an applicant who (1) is a legitimate victim of past persecution and (2) demonstrates a reasonable possibility of “other serious harm” upon deportation, is eligible for asylum under the new regulation. This regulation will come into effect when the Immigration has presented evidence to show that there are changed country conditions (in your favor) or that you can find some safe harbor somewhere in your home country.

Question: What will qualify for “other serious harm”?

Answer: First, the Justice Department now believes it is appropriate to broaden the standards for the exercise of discretion in such cases. For example, there may be cases where it is appropriate to offer protection to applicants who have suffered persecution in the past and who are at risk of future harm that is not related to a protected ground. Therefore, the rule includes, as a factor relevant to the exercise of discretion, whether the you may face a reasonable possibility of “other serious harm” upon return to your country of origin or last habitual residence. As with any other element of an asylum claim, the burden is on you to establish that such grounds exist and warrant a humanitarian grant of asylum based on past persecution alone.

Therefore, it is now within the discretion of the Immigration Judge and the Board of Immigration Appeals to grant asylum to victims of past persecution whose fear of future persecution has been rebutted if you can show (1) “compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution,” OR (2) “a reasonable possibility that you may suffer other serious harm upon removal to that country. At this point it is not clear what is meant by “other serious harm”. However, it is a lessening of your burden in proving asylum when you can show the past persecution.

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