Many noncitizens apply for "withholding of removal" or protection under the United Nations Convention Against Torture (CAT) at the same time they apply for political asylum. While the standards overlap, the latter two are largely viewed as a backup to asylum, to avoid being deported. In other words, withholding or CAT protection might be granted in removal proceedings after asylum and other forms of relief have been denied. Withholding of removal and CAT protection are also valuable in cases where an applicant is barred from asylum (as discussed below), since the bars to asylum and to these other two remedies are not identical.
However, withholding and CAT protection confer only limited legal rights in the United States. Neither withholding of removal nor protection under CAT permits you to obtain permanent residency (a green card) or U.S. citizenship.
This article discusses the rights given to those who are granted withholding of removal or protection under CAT. To review the eligibility requirements for asylum, withholding of removal, and protection under CAT, please see “Differences Between Asylum Withholding of Removal, and Protection Under Convention Against Torture.”
Why You Might Be Granted Withholding of Removal But Not Asylum
To qualify for withholding of removal, noncitizens who are in removal proceedings must establish that it is “more likely than not” that their life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion in their native country.
While both withholding and asylum prevent removal based on the likelihood of experiencing future persecution, it is harder to prove eligibility for withholding than for asylum.
For withholding, you must show a clear probability of future persecution (that it is "more likely than not"), by presenting human rights reports, country reports, and other convincing evidence showing that people sharing your race, religion, nationality, membership in a particular social group, or political opinion are regularly persecuted. By contrast, an asylum applicant need only demonstrate that there is a “reasonable possibility” of persecution in the country of removal. In other words, the Immigration Court judge may grant you asylum if he or she determines that persecution is a reasonable possibility even if there is only a slight chance that it will occur.
Yet, even though the burden of proof is higher, withholding of removal may be the only option for some noncitizens.There is no time deadline within which you must apply for withholding. An asylum application, however, must be submitted within one year after the date of arrival in the United States (unless you qualify for an exception based on either changed circumstances affecting your eligibility for asylum or extraordinary circumstances relating to the delay in filing within one year). Due to the time bar, applicants may be granted withholding over asylum, even though withholding is more difficult to prove.
Also, while both withholding and asylum have criminal bars to eligibility, there are fewer crimes barring someone from being approved for withholding than for asylum.
Your Rights Under a Grant of Withholding of Removal
If you are granted withholding of removal, it means that you have been ordered removed (or deported) from the U.S., but your removal is suspended. This grant protects you from being returned to a country in which you fear harm. Also, noncitizens granted withholding of removal may apply for work authorization in the United States.
However, withholding of removal does not offer many benefits. First, it confers no permanent right to remain in the United States. Noncitizens granted asylum, by contrast, may apply for a green card on the one-year anniversary of their asylum grant. You should, however, look into whether you might be eligible to adjust your status based on other grounds. For instance, if you marry a U.S. citizen or lawful permanent resident, your spouse may petition for a green card for you. Also, if you obtain a diversity visa under the visa lottery program, you become eligible to adjust your status to a lawful permanent resident of the United States.
Second, the U.S. government may seek to remove you to a third country (other than the country where you are threatened). Also, if conditions in your country later change such that your fear of future harm is no longer reasonable, you can lose your withholding status. The Department of Homeland Security (DHS) may seek to reopen your case for this purpose. A grant of withholding of removal does not permit you to obtain immigration benefits for your spouse or children.
Another issue is that you cannot travel outside of the U.S. and simply reenter. As described above, withholding recipients have an outstanding order of removal against them. For that reason, if you travel outside of the U.S., the government will consider your exit “self-deportation” even though you left on your own. For more information on inadmissibility issues following deportation, please see "After Removal: Possibilities for Reentry to the U.S."
In summary, withholding of removal DOES NOT allow you to:
- obtain a green card or citizenship in the United States based on your grant of withholding
- obtain immigration benefits for family members present in the United States
- petition to bring eligible family members to the United States, or
- travel outside of the U.S. and return.
On the other hand, withholding of removal DOES:
- protect you from removal to the country in which you fear persecution, and
- allow you to apply for employment authorization in the United States.
Therefore, if you do not want to return to the country where you fear persecution, you should be prepared to remain in the U.S. for an extended period of time without enjoying the same rights as U.S. permanent residents.
Why You May Be Granted CAT Protection Instead of Asylum or Withholding of Removal
Article 3 of the United Nations Convention Against Torture protects noncitizens from removal to a country where more likely than not they would face torture. The Convention defines torture broadly as any intentional unlawful infliction of severe pain or suffering, whether physical or mental, with consent of or acquiescence by a public official, for purposes such as punishment, obtaining a confession, intimidation, or discrimination.
As noted above, asylum and withholding cases are based on persecution. Persecution under the Convention means to harass, punish, injure, oppress, or otherwise cause someone to suffer physical or psychological harm. A person who is likely to be tortured is also likely to face persecution, whereas a person who is likely to face persecution may not necessarily be tortured. It is difficult to obtain a grant of CAT protection, because most applicants cannot prove that there is a 51% or higher chance that they will be tortured.
Seeking CAT protection may be a good option for some noncitizens. If you have been tortured in the past, and you are barred from applying for asylum or withholding of removal (for reasons such as serious criminal convictions or having persecuted others) CAT protection might be your last or only option for avoiding removal to your home country. In addition, for CAT relief, the torture you are likely to face need not be on account of one of the five protected grounds required for asylum and withholding of removal.
Your Rights Under a Grant of Convention Against Torture Protection
There are two types of protections under CAT: withholding of removal and deferral of removal.
CAT withholding of removal protection prevents the removal of noncitizens to the specific country where they would likely face torture. However, this status may be terminated if DHS reopens your case in Immigration Court and establishes that you are no longer likely to be tortured in the country of removal. Also, CAT recipients may be removed to a third country where they would not be tortured if they have a legal right to remain there.
CAT "deferral of removal" prohibits returning noncitizens to a country where they would likely face torture. Deferral of removal is granted to noncitizens who pose a security risk in the United States, usually due to criminal convictions, terrorist activity, or participation in the persecution of others. Those granted deferral of removal may be held in detention and are not entitled to employment authorization, but they may be released or issued employment authorization by the local Immigration and Customs Enforcement (ICE) district director.
In sum, CAT protection DOES offer the following benefits:
- you will not be removed to the country where you will likely face torture, and
- you have the ability to apply for U.S. work authorization with ICE.
However, CAT protection DOES NOT:
- provide a path to lawful permanent residency (green card) or U.S.citizenship
- confer immigration benefits on family members present in the United States or allow you to bring family members to the U.S., nor
- give you any permanent right to stay in the United States.
For personalized advice, consult an experienced U.S. immigration attorney.