Asylum, Withholding of Removal, and CAT

Asylum

To qualify for asylum, you must establish that you are a unable or unwilling to return to his or her country of nationality, or last habitual residence if you have no nationality, because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for your persecution or why you fear persecution. With limited exceptions, you must file your asylum application within one year from your initial entry to the United States. You can either apply for asylum directly with USCIS or in Immigration Court. However, if your asylum case is denied with USCIS, they will refer your case to Immigration Court.

What makes me ineligible for asylum? 

Bars to asylum include the following:

• Persecution of others
• Conviction of certain types of crimes in the United States;
• Commission of serious, non-political crimes outside of the United States;
• Being a danger to national security;
• Terrorist activity;
• Firmly resettling in another country outside of your home country;
• Having a safe third country where you could live;
• Prior Asylum denial (except in changed circumstances); and
• filing for asylum more than one year after arriving in the U.S. (with limited exceptions)

Can I bring my family members to the U.S. if I am seeking asylum?

Unfortunately, asylum seekers are not able to bring family members to the U.S. until after they are granted asylum. If you are granted asylum, you may bring qualifying children and your spouse to the United States by filing an I-730, Refugee/Asylee Relative Petition. You must file the petition within two years of being granted asylum unless there are humanitarian reasons to excuse this deadline. There is no fee to file this petition.

Please note, you may include your spouse and children who are already IN the United States on your application at the time you file or at any time until a final decision is made on your case. Children must be under 21 and unmarried to be included.

Will I be allowed to work in the United States while my asylum application is pending? 

You cannot apply for permission to work (employment authorization) in the United States at the same time you apply for asylum. You may apply for employment authorization if:

• 150 days have passed since you filed your complete asylum application, excluding any delays caused by you (such as a request to reschedule your interview) AND
• no decision has been made on your application.

If you are granted asylum, you may work immediately. Some asylee choose to obtain employment authorization documents (EADs) for convenience or identification purposes, but an EAD is not necessary to work if you are an asylee.

To apply for employment authorization, you must file a Form I-765, Application for Employment Authorization. There is no fee to apply for your first EAD if you have a pending asylum application or if you have been granted asylum.

When can I apply for a green card and citizenship?

If you are granted asylum, you may apply for a green card one year after the date upon which you were granted final asylum status. You must submit a separate I-485 application packet for yourself and, if applicable, for each family member who received derivative asylum based on your case. Generally, a green card holder can apply for U.S. citizenship after five years of continuous permanent residence.

Withholding of Removal

To qualify for withholding of removal, you must establish that it is more likely than not that your life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion in the proposed country of removal. Similar to asylum, withholding of removal protects a person from being deported to a country where they fear persecution.

How do I apply for withholding of removal? 

Applications for withholding of removal are made on the same form as asylum applications and are made simultaneously with the asylum application. However, while either an asylum officer or an immigration judge can grant asylum, only an immigration judge hearing a case for someone in removal proceedings can grant withholding of removal.

What is the difference between asylum and withholding? 

If you obtain an order of withholding of removal, you cannot be removed to the country where your life or freedom would be threatened. However, this means that you may be removed to a third country where your life or freedom would not be threatened. Additionally, withholding of removal does not adhere derivatively to any spouse or child in the application; they would have to apply for such protection on their own.

Unlike asylum, if you are granted withholding of removal, this would not give you the right to bring your relatives to the United States. It also would not give you the right to apply for lawful permanent resident status in the United States. Moreover, a person granted withholding of removal is required to pay a yearly renewal fee for an employment authorization document in order to maintain the legal right to work in the United States.

A person granted withholding of removal cannot travel outside of the United States. If they do, they are considered to have self deported and the order of removal the immigration judge issued will go into effect. This will make it very unlikely for that person to reenter the United States.

Why apply for withholding of removal if winning it is less useful than obtaining asylum? 

Generally, when a person files for asylum they automatically file for withholding at the same time. There is no one-year filing deadline for withholding applications, and it is not discretionary. That is, if someone proves that they are eligible for withholding, a judge must grant the application. There are also certain crimes which may disqualify applicants from winning asylum, but do not disqualify them from withholding of removal.

Convention Against Torture (CAT)

Convention against Torture relief is an extremely rare grant of protection from deportation that an immigration judge grants for individuals who fear torture in their home country. To qualify for CAT, an applicant must demonstrate a clear probability (more than a 50% chance) that they will be tortured either directly by or with the acquiescence of the government of their country of origin. This is an extremely difficult legal showing to make, and consequently, only about 2-3% of all applications for CAT are granted across the country.

What would be considered torture for purposes of CAT? 

For an act to be considered torture, it must be an extreme form of cruel and inhuman treatment, it must cause severe physical or mental pain and suffering, and it must be specifically intended to cause severe pain and suffering. Additionally, torture is an act inflicted for such purposes as obtaining from the victim or a third person information or a confession, punishing the victim for an act he or she or a third person has committed or is suspected of having committed, intimidating or coercing the victim or a third person, or for any reason based on discrimination on any kind.

Why apply for CAT?

Certain individuals are legally ineligible for both asylum and withholding of removal and relief under CAT is the only chance they have to remain in this country. Most commonly, this occurs when an individual has been convicted of a “particularly serious crime” in the United States. People who have been sentenced to combined total of five or more years of imprisonment for convictions for “aggravated felonies,” and people who have criminal convictions related to selling drugs are almost always considered to have committed a particularly serious crime.

Other types of criminal convictions that may be considered “particularly serious crimes” are those that involve significant violence, harm, or a serious risk of injury to others. Other factors that may make a person eligible only for CAT include commission of a “serious nonpolitical crime” outside of the United States, persecution of others, or participation or support of terrorist groups.

Almost all people who qualify only for CAT are subject to mandatory detention during the course of their removal proceedings, meaning that they do not qualify to be released from immigration detention on parole or after paying bond. In some instances, the US government will continue to detain an individual even after they have been granted CAT if the government consider them to be a danger to the community.

How do I apply for CAT relief? 

To apply for CAT, you must check the box at the top of Page 1 of the application and fully complete Form I-589. You must also include a detailed explanation of why you fear torture. In your response, you must write about any mistreatment you experienced or any threats made against you by a government or somebody connected to a government. Only immigration judges and the Board of Immigration Appeals (BIA) may grant CAT. If you have applied for asylum, the immigration judge will first determine whether you are eligible for asylum or withholding of removal. If you are not eligible for either, then the immigration judge will determine whether the CAT prohibits your removal to a country where you fear torture.