Asylum, Withholding of Removal and Relief Under the Convention Against Torture
Asylum, Withholding of Removal and Relief Under the Convention Against Torure are all forms of relief from removal based on an individual’s fear of persecution, harm, or torture in their native country.
All three forms of relief can be applied for at the same time, as the same application, Form I-589, is used to make all claims.
ASYLUM
Asylum is a form of relief from removal available to aliens who fear persecution in their home country or country of last residence.
Any alien who is physically present in the U.S. or who arrives in the U.S., irrespective of status, may apply for asylum.
Applicants for asylum must establish:
(1) That s/he is a refugee within the meaning of the INA; and
(2) That s/he has a well-founded fear of persecution in his/her home country.
“Refugee”
In order to establish oneself as a refugee, an asylum applicant must show that at least one central reason for the persecution is or will be race, religion, nationality, membership in a particular social group, or political opinion.
“Well-founded fear of persecution”
Persecution has been defined to mean the infliction of suffering or harm in an offensive way. The harm need not be physical harm; substantial economic deprivation will also qualify. Also, the infliction of such harm need not be at the hands of the government.
Whether a fear of persecution is “well-founded” is determined by a “reasonable person” standard. The determination is based on whether a reasonable person in the asylum applicant’s circumstances would fear persecution.
Time Limit for Asylum Claims
Applications for asylum must be filed within one year after the date of arrival in the U.S. However, this time limit will not apply if the applicant can demonstrate either:
(1) Changed circumstances materially affecting his/her eligibility for asylum (Example: changed country conditions); OR
(2) Extraordinary circumstances relating to the delay in filing an application within the time period required (Examples: serious mental or physical disability; ineffective assistance of counsel).
Additional Bars to Eligibility for Asylum
In addition to individuals who fail to meet the time requirement, the following individuals are NOT eligible for asylum relief:
(1) An alien who can be safely removed to another country;
(2) An alien who has had a previous asylum application denied, unless s/he can demonstrate changed or extraordinary circumstances;
(3) An alien who has participated in persecution of another on account of race, religion, nationality, membership in a particular social group, or political opinion;
(4) An alien who has committed a particularly serious crime; and
(5) An alien who is regarded as a danger to the security of the U.S.
Warning: Frivolous Applications for Asylum
A frivolous asylum claim is one in which a material element is deliberately fabricated. The consequence is that the applicant becomes permanently ineligible for any other immigration benefits.
Approved Applications for Asylum
If an individual’s application for asylum is approved:
(1) The individual may apply for adjustment of status one year later;
(2) The individual is entitled to work in the U.S.;
(3) The individual may be permitted to travel outside the U.S.; and
(4) The individual’s spouse and children may also be granted asylum.
Discretionary
Asylum is a discretionary form of relief. This means that to be granted asylum in the U.S., individuals must show, in addition to the requirements listed above, that they are deserving of the relief. If an alien applies for asylum in Immigration Court, the Immigration Judge makes the determination of whether the alien is “deserving” of this form of relief from removal.
If an alien is denied asylum solely for discretionary reasons, s/he may still be eligible for a form of relief from removal known as withholding of removal.
WITHHOLDING OF REMOVAL
Withholding of removal (“WOR”) is a form of relief from removal similar to asylum in that it provides protection for persons fleeing persecution. Like asylum, there must be a threat to life or freedom on account of race, religion, nationality, political opinion, or membership in a particular social group.
However, WOR has a higher standard of proof than asylum. Whereas asylum applicants must prove a “well-founded fear” of persecution, applicants for WOR must prove that they face a threat to life or freedom by a “clear probability” standard.
The “clear probability” standard
This means that it is “more likely than not” that the person will be subject to harm. It is a more difficult standard to meet than the “well-founded fear” standard. There must be better than a 50% chance of threat to the individual’s well-being.
Differences from asylum
Unlike asylum, a grant of WOR does NOT provide successful applicants with the following benefits:
(1) WOR does not lead to lawful permanent resident status (green card holder);
(2) WOR does not give the individual the possibility of travel outside the U.S.;
(3) WOR does not grant benefits to spouses or children of applicants.
Mandatory
WOR is a mandatory form of relief. Whereas asylum is discretionary, which means that it will only be granted upon a finding that the applicant is deserving, WOR is mandatory, which means that it MUST be granted if eligibility is proven.
RELIEF UNDER THE CONVENTION AGAINST TORTURE
The Convention Against Torture (“CAT”) provides for relief from removal for individuals who fear torture at the hands of the government in his/her country, or from individuals who have the consent of that government.
Relief under the CAT can provide relief to aliens who are not eligible for asylum or WOR because they fail to fall into one of the five categories of bases for persecution: race, religion, nationality, political opinion, or membership in a particular social group.
Relief under the CAT can also provide relief to aliens who are not eligible for asylum or WOR because of their criminal history, past persecutory acts, etc.
This form of relief does not require that the applicant show that the torture is “on account of” a specific reason.
Requirements
Applicants for CAT relief must establish that:
(1) It is more likely than not;
(2) That s/he would be subject to torture;
(3) Inflicted by, at the instigation of, or with the consent or acquiescence of;
(4) A public official or other person acting in an official capacity.
Torture
For purposes of the CAT, torture refers to any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as:
(1) obtaining a confession;
(2) punishment for commission or suspicion of commission of an offense;
(3) intimidation or coercion;
(4) or for any reason based on discrimination of any kind.
The “clear probability” standard
Like WOR, relief under the CAT requires the applicant meet the requirements by the clear probability standard. Applicants must prove that it is “more likely than not” that s/he would be subject to torture, etc.
Relief under the CAT and “deferral of removal”
The result of a grant of relief under the CAT is the same as for WOR unless the individual is ineligible for WOR due to past persecutory acts, conviction of a particularly serious crime, or for security reasons. The relief for these individuals under the CAT is called deferral of removal.
Deferral of removal provides limited relief in that the applicant receives no lawful status in the U.S. Additionally, successful applicants will not be released from custody if detained. Finally, deferral of removal may be terminated at any time.