Which Should I Apply for: Asylum, Withholding of Removal, and/or Protection Under Convention Against Torture?

Applying for asylum in the United States? Here's why you should also apply for two alternative forms of relief, as well.

By , Associate Professor · Creighton University School of Law

If you are physically present in the U.S., and are planning to apply for asylum because you fear persecution or torture in your country of origin, it's in your best interests to also apply for two alternative forms of relief at the same time, namely:

  • withholding of removal, and
  • protection under the United States Convention Against Torture ("CAT").

In fact, it's quite convenient to submit these separate requests, because they're all made using USCIS Form I-589, the "Application for Asylum and for Withholding of Removal." There, you are asked to check boxes indicating which forms of relief you are applying for.

Reasons to Apply for More Than Just Asylum

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 important advantages to applying for them, namely that they provide a backup possibility. For some applicants, they become the only hope for remaining in the United States.

That's because:

  1. they are mandatory, meaning the U.S. government official deciding the case can't make a subjective, discretionary decision, but MUST grant withholding or CAT if you show you're eligible for it, and
  2. 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.

So, if discretionary factors might prevent you from obtaining asylum (for instance, if the judge could think you are undeserving due to a history of minor crimes) or if certain bars to asylum 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 someone to a country where their life or freedom would be threatened on account of a protected ground (race, religion, nationality, political opinion, or membership in a particular social group).

You will need to show that you meet the qualifications to be considered 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 of Removal Is Mandatory If You Meet the Legal Test

The main advantage of applying for withholding of removal is that it is a mandatory form of protection. That is, if you meet the requirements of withholding, the judge or decisionmaker must grant you 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 could 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, and would block you from receiving it, are:

  • persecution of others
  • conviction of a particularly serious crime
  • commission of a serious nonpolitical crime outside the United States, or
  • terrorism.

It's Harder to Prove That You're Eligible for Withholding Than for Asylum

Although the legal 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 highly 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 of Removal

Withholding of removal provides a narrower scope of relief than asylum does. That means fewer benefits after you're granted, as follows:

  • It is country-specific. After a grant of withholding 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 if you obtain it (though the immigration judge can separately grant it to each one of them 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 status 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.
  • It does not entitle you to many benefits available to asylees (for example, you can lawfully work in the United States only if you maintain a valid employment-authorization document).

Importantly, the U.S. government may terminate your withholding if it sees a reason to do so. Specifically, 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 of removal, 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 entirely prevent you from being granted this form of relief. (The exception is that a "particularly serious crime" on your record might result in being granted only temporary protection from removal.) 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.

If You Are Found to Qualify for More Than One Form of Relief Due to Fear of Persecution or Torture

If the U.S. official deciding your case finds that you're 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.

Getting Legal Help

A good attorney might improve your chances of obtaining asylum or some alternative form of relief. The attorney can help you highlight the most compelling portions of your claim, overcome any negative information, prepare the paperwork and supporting documents, help you prepare to testify, and appear with you, either at the Asylum Office or in Immigration Court.

Fortunately, asylum is an area where you'll find a lot of help from volunteer attorneys or nonprofit (charitable) organizations serving immigrants and refugees.

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