Differences Between Asylum, Withholding of Removal, and Protection Under Convention Against Torture
If you are physically present in the U.S., and are applying for asylum, you should also apply for two alternative forms of relief if you fear persecution or torture in your country of origin:
- withholding of removal, and
- protection under the United States Convention Against Torture (“CAT”).
Although the requirements to be granted withholding and CAT protection are higher than those for asylum (you need to prove that it is more likely than not that you would be persecuted or tortured), and they provide more limited benefits than asylum does, there are advantages to applying for them:
- they are mandatory (meaning that the government official deciding your case can't make a subjective, discretionary decision, but MUST grant withholding or CAT if you're eligible), and
- the bars that might otherwise prevent you from obtaining asylum (see “Bars to Receiving Asylum or Refugee Status”) might not prevent you from being granted withholding or CAT protection.
Therefore, if discretionary factors might prevent you from obtaining asylum or if certain bars apply to you, it is especially important for you to apply for those alternative forms of relief.
What Is Withholding of Removal?
Withholding of removal (called “non-refoulment” under the United Nations Convention Relating to the Status of Refugees) prohibits the U.S. government from removing you to a country where your life or freedom would be threatened on account of a protected ground (your race, religion, nationality, political opinion, or membership in a particular social group).
You will need to show that you are a refugee, and that there is a clear probability of your persecution by a government (or a group the government cannot control) if you were returned to your country of origin. As with asylum, if you can show that you have been persecuted in the past, it is presumed that you would be persecuted in the future in your home country.
Grant of Withholding Is Mandatory If You Meet the Test
The main advantage of applying for withholding is that it is a mandatory form of protection. That is, if you meet the requirements of withholding, you will be granted this form of relief. Any discretionary factors are not relevant. Therefore, you should apply for it as a backup form of relief if you might be denied asylum based on discretionary factors (such as a long history of crimes that are not serious).
Moreover, some reasons that would bar you from obtaining asylum (such as the one-year filing deadline or firm resettlement) do not apply to withholding. The only bars that do apply to withholding are:
- persecution of others
- conviction of a particularly serious crime
- commission of a serious nonpolitical crime outside the United States, or
It's Harder to Prove That You Are Eligible for Withholding Than for Asylum
Although the grounds for withholding of removal are the same as for asylum, it is harder to qualify for withholding. That is because you must show a clear probability of future persecution (that is, that it is more likely than not that you would be persecuted) if returned to your country of origin. The test is objective, and you will need to present very convincing evidence, including country reports, suggesting that it is more likely than not that you would be persecuted.
What Happens When You're Granted Withholding
Withholding of removal provides a narrower scope of relief than asylum does. Specifically:
- it is country-specific; you will not be removed to the particular country (or countries) where you are more likely than not to be persecuted, but you can be removed to a safe third country
- it is person-specific; your spouse and children will not receive withholding derivatively even if you obtain it (though the immigration judge can separately grant it to each one if they file their own I-589 applications for asylum)
- it does not automatically allow you to apply for a green card (that is, adjust to become a legal permanent resident) or to later naturalize as a citizen
- you cannot travel outside the United States or you will be barred from returning, and
- it does not entitle you to many benefits available to asylees (for example, you can work only if you maintain a valid employment-authorization document).
Importantly, the U.S. government may terminate your withholding. The Department of Homeland Security may reopen your case if conditions in the country (or countries) to which you were not be removed change so that you no longer qualify for this form of relief.
What Is CAT Protection?
Like withholding, CAT protection is a mandatory form of relief if you meet all of the required elements. That is, the U.S. government cannot return you to a country where there are substantial reasons for believing that you would be in danger of being subjected to torture.
To qualify for protection under CAT, you have to show that it is more likely than not that you would be tortured if removed to the country from which you are claiming protection. (This is the same level of probability as required for withholding.)
Unlike withholding, however, you must also show that the harm you fear meets the definition of “torture” under the CAT (which is any intentional unlawful infliction of severe -- physical or mental -- suffering or pain, with consent of a public official, for purposes such as punishment, obtaining a confession, intimidation, or discrimination).
Because the goal of CAT protection is to prohibit your return to a country where you would be in danger of being tortured in the future, past torture is merely a relevant factor, and the test is entirely objective. As with withholding, you need to submit objective evidence, such as country-reports and news articles, indicating that you are more likely than not to be tortured.
The main advantage of CAT protection is that none of the bars to asylum would prevent you from being granted this form of relief. Moreover, the torture you would face in your country of origin does not need to be on account of one of the five protected grounds.
As with withholding, CAT protection has limited benefits. Most importantly, it allows you to be removed to a safe third country, and your protection may be terminated if you are no longer at risk of torture in your country of origin.
What Happens If You Qualify for More Than One Form of Relief
If you are found to be eligible for more than one of these three forms of relief, you will be given the one that is the broadest in scope. That is, if you qualify for asylum -- and you also qualify for alternative forms of relief -- you will be granted asylum. Don't settle for withholding or CAT protection unless you absolutely have to.