How Do Withholding of Removal and Convention Against Torture Differ from Asylum?


Asylum vs Withholding of Removal & Convention Against Torture

While the current administration has reduced the number of asylees every year since 2016, applying for asylum is still a valid way to obtain a green card. Before applying for protection status, it’s important to understand the differences among asylum, withholding of removal (WOR), and convention against torture (CAT). 

This article compares withholding of removal and convention of torture to asylum so you can make an informed decision regarding the step to take for your immigration status. If you’re thinking of filing an application for any of the three, make sure to discuss your case with an immigration attorney.

Who Can Apply

If you are currently in the US and are afraid of getting persecuted in your home country, you may be qualified to apply for either asylum, withholding of removal, or convention of torture. All three use the same form (Form I-589), which means that applying for it is relatively easy, but proving it is another matter. If you have concerns regarding your eligibility to apply, check with immigration laws or consult with reliable immigration attorneys.

While there are some similarities, these three still greatly differ especially when it comes to requirements for approval. Generally, the requirements for withholding and CAT are higher than that for asylum and have more limited benefits, but comes with important advantages.

Advantages over Asylum

The benefits you receive from WOR or CAT are mandatory benefits, which means that a judge has no discretion in granting these benefits. As long as you qualify for either of the two, you get the benefits granted by it.

This is not the case in a request for asylum, where a judge does have discretion. As such, you may be disqualified for asylum due to a criminal conviction or missing the one-year deadline, which otherwise wouldn’t disqualify you for a withholding or CAT.

What is Withholding of Removal?

A withholding of removal (WOR) prohibits the US government from deporting you to your home country where your life or freedom would be threatened due to a protected ground. Protected grounds include race, nationality, religion, particular social group, and political opinion.

Withholding vs Asylum

In withholding cases, courts have held that you must show that there is a reasonable fear of persecution, which means that there should be a 51% or higher likelihood of being persecuted. This is higher than that for requesting asylum, which only requires credible fear or a 10% likelihood.

In addition, withholding can only be granted by an immigration judge, not an asylum officer. Unlike asylum, withholding cases can be applied for after the one-year deadline. Moreover, a withholding case is country specific. As such, you may not be removed to your home country, but you may be removed to a safe third country.

Note that a case for withholding of removal is specific to you. This means that your spouse and children cannot receive withholding derivatively, but it can be granted to them separately if they file their own Form I-589.

Getting a Green Card

Those who are granted withholding of removal are not eligible to apply for a green card or United States citizenship. You also cannot leave the US (meaning you can’t travel internationally) or apply to sponsor family so they can obtain legal status in the United States.

Termination and Denial

The US government can terminate your withholding and reopen your case if the conditions in your home country change such that you no longer qualify for relief.

Both asylum and withholding may be denied if:

  • You’ve persecuted others;
  • You’ve provided material support to a terrorist organization;
  • You’ve obtained legal permanent residency in another country before entering the US; or
  • You were convicted of serious crimes.

Note that some convictions will disqualify you from asylum from not from withholding of removal.

What is Convention Against Torture?

Like withholding of removal, the judge has no choice but to grant you convention against torture (CAT) relief if you meet the qualifications. The US government can’t return you to a country where you will be subject to torture, which is defined as the intentional, unlawful infliction of severe physical or mental suffering or pain, with the consent of a public official in order to punish, obtain a confession, intimidate, or discriminate against you.

Convention Against Torture vs Asylum

Similar with withholding cases, the standard proof is that it should be more likely than not (51%) that you’ll be tortured if you are sent back to your home country.

Since the goal of CAT is to prevent your torture if you are returned, past torture is a relevant factor but dispositive factor in a CAT application. Unlike the other two, CAT has none of the bars to to relief of withholding and asylum, and the torture you would face doesn’t have to be due to one of the protected reasons.

However, the benefit provided by CAT is limited in that:

  • You can be removed to a safe third country;
  • You protection can be terminated if you’re no longer at risk of torture in your home country; and
  • You cannot get a green card or become a US citizen through this process.

If you’re considering filing an application for either asylum, withholding of removal, or convention against torture, it’s important to have someone well-versed in immigration laws assist you throughout the process. Our experienced immigration attorney will work with you to determine whether you qualify and determine your next best steps, including looking at the possibility of another legal status. Contact our office at Andres Mejer Law to get your free immigration diagnosis today!

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