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Withholding of Removal and CAT

What is withholding of removal?

Withholding of removal is a status which is similar to asylum, but not as secure. People who win withholding of removal have the right to remain in the U.S. and work legally. Unlike asylees, however, people with “withholding” do not have the right to apply for legal permanent residence. People who win “withholding” actually have a final order of removal (deportation) against them, so if they ever travel outside the U.S., they will not be permitted to return here.

How do I apply for “withholding”?

Withholding applications are made on the same form as asylum applications (form I-589) and are made simultaneously with the asylum application. A claim for “withholding” of removal can only be decided in removal proceedings by an Immigration Judge, however. An asylum officer cannot grant “withholding.”

What is the standard for “withholding of removal”?

As with asylum, a “withholding” application must be based on fear of persecution on account of “race, religion, nationality, membership in a particular social group, or political opinion.” The standard for “withholding” is higher than for asylum, however. To win asylum, an applicant must show a “well founded fear” and to win “withholding” an applicant must demonstrate that he or she is “more likely than not” to face persecution if returned to his or her country. In other words, an asylum applicant must show that it’s possible he or she will face persecution whereas a withholding applicant must show that future persecution is probable.

Why would anyone apply for withholding of removal if winning it is so much less useful than winning asylum?

Generally, when a person applies for asylum, he or she applies for “withholding” at the same time. There is no one year filing deadline for “withholding” applications, so sometimes an Immigration Judge finds that an applicant is eligible for “withholding” but not for asylum because the applicant missed the one year filing deadline. There are also certain crimes which may disqualify applicants from winning asylum, but which would not make them ineligible for withholding. Applicants who are convicted of “particularly serious crimes,” however, which include many felonies, are not eligible for withholding, and can only apply for relief under the Convention against Torture.

What is the benefit of being granted “withholding”?

The primary benefit is that you are permitted to remain in the United States. You are permitted to obtain employment authorization and to receive most of the same government benefits as asylees.

What is relief under the Convention against Torture Treaty?

Foreign nationals who fear that they would be tortured either directly by their government or with the acquiescence of their government if returned to their country of origin may qualify for relief under the Convention against Torture (CAT) treaty permitting them to remain in the United States. Unlike asylum and withholding, to qualify under CAT, you do not have to show that the abuse you will suffer is “on account of” one of the five protected characteristics (race, religion, nationality, membership in a particular social group, or political opinion.) The standard for CAT, however, that it is more likely than not that the applicant would face torture, is a very high one and CAT cases are not often granted. The primary reason that an individual might seek CAT is that if an applicant meets the high standard for relief, she or he must be granted relief, even if she or he has been convicted of very serious crimes (including aggravated felonies) in the United States. If, however, the U.S. government feels that an individual who has been granted CAT is a danger to the community because he or she has committed very serious crimes, the government may detain him or her even after having won CAT relief. There is no one year filing deadline for CAT relief.

How do I apply for CAT relief?

Most individuals who apply for asylum and withholding apply for CAT at the same time. The application is made on the same form, I-589, and to apply for CAT you must check off a box indicating that you are also applying for CAT. One of the essay questions (question B 4) on the asylum application form asks whether you fear torture if you are returned to your country, so if you are applying for CAT relief, you should explain your reasons when you respond to this question.