I Hate Withholding of Removal. Here’s Why.

by Jason Dzubow on December 10, 2015

I was in court recently for an asylum case where the DHS attorney offered my clients Withholding of Removal as a “courtesy” in lieu of asylum. DHS did not believe that my clients were legally eligible for asylum, but made the offer in order to settle the case. I negotiated as best I could for asylum, and I think the DHS attorney listened carefully, but ultimately, he was unmoved. When the Immigration Judge (“IJ”) learned that DHS would agree to Withholding, he remarked that the offer was “generous,” which I took as a sign that he wanted us to accept it. In the end, my clients did not agree to Withholding of Removal, and so the IJ reserved decision. We shall see what happens.

So what is Withholding of Removal? Why did the IJ view an offer of Withholding as generous? And why did my clients refuse this offer?

Stop complaining - You're lucky we give you anything to eat at all.

Stop complaining – You’re lucky we give you anything to eat at all.

Withholding of Removal under INA § 241(b)(3) is a lesser form of relief than asylum. If a person has asylum, he can remain permanently in the U.S., obtain a travel document, petition to bring immediate relatives here, and become a lawful permanent resident and then a U.S. citizen.

A person with Withholding of Removal, on the other hand, has technically been ordered deported, but the deportation is “withheld” vis-à-vis the country of feared persecution. This means that the person cannot be deported to that country, but she could (theoretically) be deported to a third country. A person with Withholding of Removal is eligible for an employment authorization document (“EAD”), which must be renewed each year. However, unlike with asylum, she cannot leave the U.S. and return, she is not eligible to become a resident or citizen, and she cannot petition for family members. In addition, on occasion, ICE (Immigration and Customs Enforcement) attempts to deport the person to a third country. Normally, this consists of ICE ordering the person to apply to various countries for residency. This is essentially a futile exercise, and it usually involves hours of wasted time preparing applications and sitting around the ICE office. Maybe it is designed to intimidate the person into leaving, but at a minimum, it is another stressful hassle that the Withholding-of-Removal recipient must endure.

The bottom line for Withholding of Removal is that those who have it are never truly settled here. They risk losing their jobs and drivers’ licenses if their EAD renewal is delayed (which it often is). They cannot qualify for certain jobs or certain government benefits. They usually cannot get in-state tuition for school. They can never travel outside the U.S. to visit relatives or friends, even those who are gravely ill. They are here, but not really here.

For me, Withholding of Removal is more appropriate for some recipients than others: One reason a person gets Withholding instead of asylum is that he has criminal convictions that make him ineligible for asylum. In the case of a convicted criminal, it is easier to justify denying the benefit of asylum, even if we do not want to send the person back to a country where he could be persecuted.

In other cases, it is more difficult to justify Withholding. If a person fails to file for asylum within one year of his arrival in the United States, he generally becomes ineligible for asylum. He remains eligible for Withholding, but downgrading his status from asylum to Withholding because he failed to file on time seems a harsh consequence for a relatively minor infraction. Other people—like my clients mentioned above—might be ineligible for asylum because the government believes they were resettled in a third country before they came to the U.S. “Firm resettlement” is a legal construct and it does not necessarily mean that the person can live in the third country now (my clients cannot).

Despite the limitations of Withholding of Removal, many IJs (and DHS attorneys) seem to view it as a generous benefit, and they encourage asylum applicants to accept Withholding as a way to settle removal cases. They also tend to take a dim view of applicants who refuse an offer of Withholding: If the person is so afraid of persecution in the home country, why won’t she accept Withholding and avoid deportation to the place of feared persecution? I understand their perspective, but I think it fails to account for the very basic desire of people like my clients to make the U.S. their home. They don’t want to live forever unsettled and uncertain. Having escaped danger, they want to live somewhere where they can make a life for themselves and—more importantly—for their children. Withholding does not give them that.

Frankly, I think that most IJs and DHS attorneys underestimate the difficulty of living in the U.S. with Withholding of Removal. And these difficulties are not limited to practical problems related to jobs and driver’s licenses, attending and paying for school, and the indefinite separation from family members. For my clients at least, Withholding of Removal does not alleviate the stress of their situation. They have fled uncertainty only to find more uncertainty. Will they be deported to a third country? Will they lose their job if the EAD renewal is delayed? If their driver’s license expires and they must drive anyway, will they be arrested? Can their children afford college? If they buy property and invest in life here, will they ultimately lose it all? Such uncertainty would be bad enough for the average person, but we are talking here about people who have already had to flee their homelands. Asylum is a balm to this wound; Withholding of Removal, in many cases, is an aggravating factor.

Perhaps if IJs and DHS attorneys knew more about the consequences of Withholding of Removal, they would be more understanding of asylum applicants who are reluctant to accept that form of relief, and they would be more generous about interpreting the law to allow for a grant of asylum whenever possible.

{ 54 comments… read them below or add one }

michael August 17, 2017 at 5:01 am

what happened to my question, i dont c it.

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Jason Dzubow August 17, 2017 at 6:45 am

Try posting it again. Thank you, Jason

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michael August 16, 2017 at 5:15 am

i have witholdng of removal since 2012. i have been married for 2 years now to a citizen with 2 kids. my wife wants to go to my home country but because or my WOR oviously we cant. we have been vacationing all over the continent of the US. but my big question is, can we travle to other US territory such as Puerto Rico or Hawaii. like not a cruse but like a staright flight and back to our home here in the US without violating that cant travle outside the US

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Jason Dzubow August 17, 2017 at 6:32 am

You can go to Puerto Rico, but you have to be careful about certain other territories. I did a blog post about someone with a status similar to WOR who got stuck in American Samoa (the post is dated October 17, 2012). Depending on why you got WOR, you might be eligible to convert your status to a green card based on your marriage. Talk to a lawyer about that if you think it is a possibility. Take care, Jason

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Jeremy August 15, 2017 at 1:00 pm

Hello Jason,

I was granted a WOR in 2003 in San Francisco Bay Area and since then I’ve been working with my EAD. I’m renewing my EAD every year and also reporting once a year with no issues. There’s a possibility that I want to move to Dallas for my next job. It’s a good career job and I think I want to take it if the offer is good

My question is, how is this move going to affect my status? I know I need to submit an address change. Is there anything else I need to do? Do I now need to report to Dallas immigration office? Or overall, is my status going to make my life more difficult in Dallas, or about the same as in SF?

Thanks much

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Jason Dzubow August 17, 2017 at 6:04 am

Different ICE offices treat people differently, and I do not know whether Dallas is better or worse than SF. You have to file the change of address and you also have to let the ICE officer where you report know about the move (and keep copies of everything you send them, so you have evidence that you filed the changes of address, in case they ever ask you). In general, your situation should be the same wherever you are in the US. Take care, Jason

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Javier August 11, 2017 at 3:44 pm

Hi Jason

I currently have A 10 withholding of removal. I would love to move to Puerto Rico. Would it be possible with this status.?
Second question: Can I travel to Us territories?

I feel like in big cage. since I cannot travel outside of the united sates or even visiting family in my home country 🙁

Thanks for your help!

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Jason Dzubow August 14, 2017 at 6:37 am

You should be fine to go to Puerto Rico, as long as you do not go through any other countries first. As for travel to US territories, you need to be careful about that – I did a blog post on October 17, 2012 about a guy with a status similar to WOR who got stuck in Samoa. Take care, Jason

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Mario August 14, 2017 at 3:14 pm

Hi Javier I traveled to Hawaii couple years ago without any issues just bring your card with you.

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luz August 10, 2017 at 5:52 pm

Hi Jason my son has withholding of removal, he is married with a citizen 3 years ago, they are expecting a baby now they can apply for residence at the same time cancel the status of withholding of removal?

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Jason Dzubow August 14, 2017 at 6:13 am

Maybe, but it depends on the case. They would need to reopen the court case, and close the case without a deportation order. In general, for people who entered the US without inspection or who have criminal convictions, this is more difficult. Your son would need to talk to a lawyer to go over the specifics of the case and see whether he can do it. Take care, Jason

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Joe August 7, 2017 at 4:09 am

Hi Jason: I was granted deferral of removal for being part of the LGBT community on December 8th 2016 by an immigration judge, i am a citizen of Honduras and I was placed on order of supervision as well, I have my second check in with ice next month and I’m worried of being re detained. I was convicted with evading arrest with a motor vehicle, the judge knew that and that’s why I was granted deferral of removal instead of WOR. Please any hopes.

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Jason Dzubow August 7, 2017 at 10:44 pm

I doubt you will be arrested. You cannot be deported to Honduras, and unless you have lawful status to live in a third country, you cannot be deported any where else, so there really is no reason to detain you. Unfortunately, ICE can try to make your life difficult by forcing you to report more frequently, or forcing you to go to various embassies and ask them to let you live in their countries (this is idiotic, but they do it sometimes). If this happens, you should comply with their requirements, and in most case, after a few months or a year, they stop bothering you. Take care, Jason

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Julian August 6, 2017 at 4:53 pm

Hi, i entered to the states with a crew visa c1/d, i applied for asylum but the judge gave me withholding of removal now i have a partner and i wanna get married would that give me a greencard or permanent residence ?

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Jason Dzubow August 7, 2017 at 10:31 pm

Possibly, but I think it is a long road. You would need to reopen the court case and try to eliminate the removal order (WOR of removal is technically a removal order that has been “withheld” as to your country). The either you could adjust status in the US (which I think you probably cannot do if you entered as a crew member, but I am not sure) or go overseas to get the green card, which may or may not be possible. In other words, even if this is possible, it is not easy. You should talk to a lawyer to determine whether it is possible, and whether it is worthwhile, before you start spending money on this. Take care, Jason

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Fieri July 27, 2017 at 4:12 pm

Hi Jason,
I have WOR from 2007 and last year I did married to a us citizen. We applied for I-130 and did get approved. I contacted a layer and he told me that I cannot fix my status here in the us because when I entered the country I entered as illegal and for this reason I have to go back to my country and have an interview over there to get a visa to renter legally, but if I leave the US I cannot apply for a visa because of the 10 year ban….. does this make sense to you. I think during Obama some new orders were put on place that you can wave these things without leaving the US. Is this correct?
Thanks.

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Jason Dzubow July 28, 2017 at 6:21 am

There is an exception to that rule (under INA 245(i)), but to qualify, you would have had to be in the US before December 2000 (among other things). I think you would need a provisional waiver to get your GC overseas (form I-601A), and if you got that, you could return, assuming there are no other bars in your case. The first step would be to reopen the court case, and close your case without a deportation order (anyone with WOR technically also has a deportation order, and you cannot to the I-601A if you have a deportation order). In short, this is complicated and may very well not work, but there may be a path for you (though again, I do not know that for sure). Good luck, Jason

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Liz July 25, 2017 at 3:11 pm

Hi, I have withholding of removal I won that 3 years ago, no problems in this past 3 years until now, i fight with my boyfriend and im been charge with disturbing the peace and assault is this charge can affect my status?

Thank you

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Angel July 25, 2017 at 4:08 pm

no it wont affect your status,you might be detain by ice but the chance of been deported to your country is less..You can not be deported because of your status with WOR,they might look into a third country to send you there but most of the time it does not happen..

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Jason Dzubow July 26, 2017 at 6:18 am

A charge should not affect your status, but a conviction might. Make sure your criminal lawyer is aware of your immigration status. I doubt a conviction based on this charge will have any affect, but it is better to be cautious about these things and make sure the lawyer knows about it. Take care, Jason

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John July 24, 2017 at 6:58 pm

Hey Jason I have wor would I be able to travel in the country not of if the country like New York places like that

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Jason Dzubow July 25, 2017 at 6:24 am

If you have Withholding of Removal, you can travel inside the US, but you cannot leave the US and then return here. Take care, Jason

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PAC July 22, 2017 at 7:59 pm

Our family was granted withholding instead of asylum, because we filed after 1 year in the states due to bad counseling. Some people have recommended my children to apply for DACA since there is conversation about a DREAM Act on the table. Our fear is that if they apply for DACA they will no longer have the benefit of withholding, and if the Government decides to cancel DACA they will be deported to our native country which at this moment is in big turmoil. Their ages are 29 and 26. It is true that they will lose the withholding status is they apply for DACA? Your opinion is very valuable and highly appreciated.

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Jason Dzubow July 23, 2017 at 7:23 am

You should probably talk to a lawyer about the specifics of the case, as I do not know about that. However, I think they cannot qualify for DACA unless they give up Withholding (Withholding status is technically a deportation order that has been “withheld” as to the home country). To do that, basically, they need to re-open the court case, and then terminate proceedings without any deportation order. Then they can apply for DACA if they are eligible. Frankly, in my opinion, this will be difficult and it is not a good idea, but since I do not know about the case, I could be wrong. Another option – if they are eligible – is to marry a US citizen. Then they can re-open the case to get a green card based on marriage. I do think it would be a good idea to discuss all this with a lawyer to know better what the options are. Take care, Jason

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PAC July 23, 2017 at 11:34 am

Thank you! You have confirmed what I was thinking

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Deepak July 29, 2017 at 8:28 am

Hi.. I just read you story and wanted to help you. In your case you can certainly apply for Daca without giving up your WOR status..and also to save your money, you can still use your work permit through WOR, you don’t need to apply work authorization through Daca.. and once and if the DACA status comes to an end , you can still stay on your WOR status… i am very confident about what I am saying to you….

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Sally July 19, 2017 at 7:00 pm

Hello is someone is in the country with a withholding removal status and was sentenced to 14 months of prison for possession with intent to sell marijuana (4 pounds), 2 charges of driving with a suspended license (both felony), and possession of marijuana over 20 grams in the state of Florida are they subject to deportation when their sentence is over? Thank you for your help

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Jason Dzubow July 19, 2017 at 8:15 pm

They might be – The person could still try to qualify for deferral of removal under the Torture Convention and if they win, it is basically the same as having Withholding of Removal. I recommend the person talk to a lawyer to evaluate whether the person is deportable. In the alternative, the person could wait to see what the US government does – if they try to deport him, he can fight the case in court. Take care, Jason

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Ali July 18, 2017 at 2:33 am

Hi im withhold with ice can apply EAD

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Jason Dzubow July 18, 2017 at 6:42 am

I may not understand your question, but a person with Withholding of Removal is eligible for a work permit – you can check the EAD form,I-765, available at http://www.uscis.gov, for how to apply. Take care, Jason

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Ali July 18, 2017 at 5:50 pm

Thank you i was mean im withhold of dopration

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Laura July 11, 2017 at 9:51 pm

Can people with WOR adjust their status through a US citizen child family petition? I have a client who has been here almost 20 years now. They overstayed a tourist visa and got WOR about three years later.

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Jason Dzubow July 12, 2017 at 6:36 am

If the child is over 21 and there is an approved I-130, they may be able to do that (assuming they are otherwise eligible), but it would involve re-opening the court case, terminating the case without a deport order, and adjusting status with USCIS (or alternatively, adjusting status with the court). Take care, Jason

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mayen June 26, 2017 at 3:44 pm

Can you cash your social security if one wants to leave to another country?

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Jason Dzubow June 26, 2017 at 10:21 pm

I do not know about that, sorry, Jason

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Luis Lucas June 24, 2017 at 4:19 pm

I was granted deferral of removal under CAT and my yearly report date is coming up in September but I am concerned about the current policy. Is there something that can be done prior to going in case DHS decides to detain me?

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Jason Dzubow June 25, 2017 at 12:25 pm

The government has the power to detain people who have CAT deferral, at least for a period of time. Generally, they do not detain such people unless they believe you are a danger to the community. You cannot be removed to the country of feared persecution, and if there is no other country where you can live permanently, the government cannot legally remove you. Hopefully, this will be enough to protect you at the check in (and I think it probably will be enough). If you are worried, maybe talk to a lawyer so you are ready in the event that something happens at the interview. Take care, Jason

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Luis Lucas June 25, 2017 at 3:58 pm

Hi Jason,

Thank you for your response.

I lived in the US since 69, was deported (due to criminal drug conviction) in 95 and tortured on two occasions in South America and returned to the US in 2002 and requested asylum. 7 years later I was granted deferral of removal under CAT. Have been living here ever since and working along with being married to a US citizen (which I know makes no difference). Just wanted to provide more insight about my case.

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Jason Dzubow June 26, 2017 at 6:31 am

These facts could make a difference depending on the case (and especially depending on the conviction). It won’t hurt to go over the case with a lawyer who can review the specific situation and maybe give you some ideas. Take care, Jason

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Ann June 23, 2017 at 7:09 pm

I win the withholding of removal the inmigration officer told me I have to applie for another country
He trie to do something but with me?

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Jason Dzubow June 25, 2017 at 11:51 am

They sometimes do this, but if there is no other country where you can live permanently, the government cannot deport you. Again, if you are having this problem, you probably want to talk to a lawyer about the specifics of the case to see whether the lawyer can assist you. Good luck, Jason

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Ann June 23, 2017 at 7:07 pm

I win Witholdind of removal
I go every year to inmigration office for supervision because I have an deportation orden 27 years ego
Because I never receive the order for show up on court
My husband he applied for I- 130 on June 2016
I don’t receive the answer
I don’t what I have to do

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Jason Dzubow June 25, 2017 at 11:49 am

You should have a lawyer review the case. Even if the I-130 is approved, you may not be able to get your green card. It depends on the case. You can call USCIS to inquire about the I-130. Tier phone number is on their website http://www.uscis.gov. If that does not work, you can try the USCIS Ombudsman – a link is at right. Take care, Jason

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Ann July 24, 2017 at 10:44 pm

Thank you

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Rachel June 23, 2017 at 2:50 pm

Hi,
I’m a naturalized U.S citizen and have married a Venezuelan in Sept 2015 in Alabama. He was denied withholding of removal because of a third possible country. I applied for I-130, and that was approved in Aug 2016, but we never received it. It was sent to an old address, so we have applied for a I-824 for a duplicate copy three months ago. We just received a letter saying it has been transferred to a different office in Lees Summit, MO. We called them requesting a processing time, and they said it might take another 6 months. We don’t know what to do anymore. We have been married almost two years now, and he has been denied a workers permit twice already. Can you give us any advice on what to do next, and why its taking so long?

Thank you.

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Jason Dzubow June 23, 2017 at 4:50 pm

If he was denied Withholding, he may have a deportation order, which could be the issue (though USCIS should still process the I-130 and the I-864). You can also obtain a copy of the approval if you file a Freedom of Information Act request using form G-639. This is free and you get a copy of your whole file, and it usually takes less than 6 months (maybe 3 or 4 months, but it is hard to predict). If you think he has a deport order, you should have a lawyer review the case. Take care, Jason

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Rachel July 20, 2017 at 10:48 am

Jason,
should I be the one filing the G-639 or him? or does it matter? I’m asking because they denied the I-864 the first time because of incorrect applicant.

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Jason Dzubow July 21, 2017 at 6:21 am

Maybe you should both file G-639 forms – you, so you can get a copy of the approved I-130, and your husband, so he can get a copy of his file and see the disposition of his case. Anyway, it is free, so there is no harm in both of you doing it. Take care, Jason

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Chuck June 14, 2017 at 10:10 am

Hi Jason,

Me and my family have WOR since 2008. Our asylum application was denied due to a possibility of a 3RD country. After a couple of moths of the sentence we received a citation by ICE and on that they put us under an order of supervision. As part of such order we signed a document that in which we understand we should be looking for a document to leave the USA. We have been OK for the last 7 years, but now with the new guidelines setup by the Trump administration, I am worried that I can be detained during my next supervision visit. We have behaved well; have no problems with the law and have never missed an appointment. I don’t know what to do, if it is there any options to adjust status or what preparations should I be doing if the worst is to occur.

Thanks for your answer.

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Jason Dzubow June 16, 2017 at 6:08 am

First, WOR is a powerful status – you cannot be deported to the country of feared persecution. The questions is, Can you be deported to a third country? Maybe if you have some evidence that you do not have status in the third country, you should bring that to your next check-in. Such evidence could be a letter from the third country’s embassy, or a letter from a lawyer in that country, or maybe something else. Whether you can change your status to something better, I do not know, but you could talk to an immigration lawyer here to go over your case and advise you. Also, anyone with WOR can be detained, but in the situation you describe, it sounds unlikely, even under Trump, unless the government really believes that they can deport you to a third country. Take care, Jason

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mario June 11, 2017 at 2:38 am

Hi Jason: I was granted with a10 in 2013 because my lawyer wasn’t enough good to fight for my asylum to tell the true. How ever I have a clean record never and ever I did anything wrong in this country. I enter to USA with a VISA Is possible to reopen my case and looking for asylum to go forward for a green card later years or it is not possible??. Thank you.

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Jason Dzubow June 12, 2017 at 9:34 pm

Maybe – there are many reasons to reopen. One reason could be that the lawyer made a mistake that caused you to lose your case. You may want to talk to a new lawyer to evaluate your case and whether there is any possibility to reopen on this basis (or on another basis). Take care, Jason

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Maz jasbi August 7, 2017 at 10:33 pm

Hi dear sir . If you could email me a phone number I can call see how much your retainer is . Thank you

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Jason Dzubow August 8, 2017 at 6:22 am

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