Key points
- Asylum requires showing you are a refugee: persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion.[1][2]
- Withholding of removal requires showing it is more likely than not that you would be persecuted on one of those grounds; the one-year filing rule does not apply to it.[3][4]
- Convention Against Torture (CAT) protection requires showing it is more likely than not that you would be tortured, with a public official's involvement or acquiescence.[5][6]
- Only asylum lets a spouse or child share the status and leads to a green card under the asylee adjustment statute.[7][8]
- Someone barred from withholding may still receive deferral of removal under CAT.[9]
If you fear harm in your home country, U.S. law offers three main forms of protection, and they are not the same. Asylum is the broadest: it protects you, can extend to your spouse and children, and can lead to a green card.[10][7][8] Withholding of removal and Convention Against Torture (CAT) protection mainly stop the government from sending you to the country where you face harm, and they require proof that harm is more likely than not.[11][3][5] A person who cannot get asylum may still qualify for one of the others.
Asylum, withholding and CAT side by side
| Asylum | Withholding of removal | CAT protection | |
|---|---|---|---|
| What you show | You are a refugee: persecution or a well-founded fear of persecution on a protected ground, with that ground at least one central reason.[1][2] | Your life or freedom would be threatened on a protected ground; it is more likely than not you would be persecuted.[11][3] | It is more likely than not you would be tortured if removed.[5] |
| Protected ground needed? | Yes: race, religion, nationality, particular social group or political opinion.[1] | Yes, the same five grounds.[11] | No; the harm must meet the definition of torture, including official involvement or acquiescence.[6] |
| One-year filing rule | Applies, with exceptions.[12][13] | Does not apply.[4] | The regulation's one-year prohibition is limited to asylum.[4] |
| Bars | Persecutors, particularly serious crimes, serious nonpolitical crimes abroad, security and terrorism grounds, firm resettlement.[14] | Mandatory denial if a statutory exception applies, such as a particularly serious crime.[15] | CAT withholding has the same mandatory denials, but deferral of removal remains available.[15][9] |
| Spouse and children | May receive the same status.[7] | Not covered by the asylum family provision.[7] | Not covered by the asylum family provision.[7] |
| Path to a green card | Asylee adjustment after at least one year of physical presence following the grant, among other requirements.[8] | Not covered by the asylee adjustment statute.[8] | Not covered by the asylee adjustment statute.[8] |
| Work and travel | Work authorized; travel abroad possible with prior consent.[10] | Ask a lawyer about your specific order. | Ask a lawyer about your specific order. |
Asylum
Asylum may be granted to a person who is a refugee: someone outside their country who is unable or unwilling to return 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.[1] The applicant carries the burden of proof and must show that one of those grounds was or will be at least one central reason for the persecution.[2]
A person granted asylum may not be removed to their country of nationality, is authorized to work, and may be allowed to travel abroad with prior consent. Asylum does not, by itself, give a right to remain permanently.[10] After at least one year of physical presence following the grant, and if other requirements are met, an asylee may apply to become a permanent resident.[8] A spouse or child may receive the same status if accompanying or following to join.[7]
Asylum also has filing limits: the one-year rule and a bar on a second application after a denial, both subject to exceptions.[12][16][13] The one-year rule does not apply to withholding of removal.[4] The one-year asylum filing deadline explains the exceptions.
Withholding of removal
Withholding of removal comes from a different statute. The government may not remove a person to a country where their life or freedom would be threatened because of race, religion, nationality, membership in a particular social group, or political opinion.[11] The standard is different: a person who has not suffered past persecution must show it is more likely than not that they would be persecuted on one of those grounds.[3]
Two features make withholding important. The one-year filing rule does not apply to it.[4] But it is also subject to mandatory denials: an application must be denied if a statutory exception applies, and a person convicted of a particularly serious crime is treated as a danger to the community.[15]
Convention Against Torture protection
CAT protection comes from the United Nations Convention Against Torture, as implemented in U.S. law and regulations.[17] The applicant must show it is more likely than not that they would be tortured if removed to the proposed country.[5] No protected ground is needed, but the harm must meet the regulatory definition of torture: severe pain or suffering, physical or mental, intentionally inflicted for purposes such as obtaining information, punishment, intimidation or discrimination, by or with the consent or acquiescence of a public official or other person acting in an official capacity.[6]
CAT protection takes two forms. Withholding of removal under the CAT regulations is subject to the same mandatory denials as statutory withholding.[15] A person who is ordered removed, is found entitled to CAT protection, but falls under a mandatory denial is granted deferral of removal to the country where torture is more likely than not.[9]
Applying for more than one
The three claims can be decided in the same case. In the defensive process, the immigration judge considers asylum and, if asylum is denied, other relief from removal.[18] After a credible fear finding, USCIS may consider asylum, withholding and CAT eligibility in an Asylum Merits Interview, or send all three claims to an immigration judge.[18] Form I-589 is the Application for Asylum and for Withholding of Removal.[18]
Which claims fit depends on the facts: the reason for the harm, who caused it, when you arrived, and your criminal and travel history. Affirmative or defensive asylum explains which process you are in, and asylum referred to court or denied covers what happens after a decision. If you are a survivor of domestic violence or a crime, VAWA, U visa or asylum compares other options.
Asylum-related rules change often and are frequently affected by court orders.[19] Check the official USCIS and EOIR pages on the day you file.
Joya Law Firm's defensive asylum page describes its work on these claims in immigration court.
Common questions
If I missed the one-year asylum deadline, is there anything left?
Possibly. The regulation says the filing prohibitions, including the one-year rule, apply only to asylum and not to withholding of removal.[4] Withholding requires showing it is more likely than not that you would be persecuted on a protected ground.[3] An exception to the one-year rule may also apply.[13]
What counts as torture under the CAT regulations?
Severe physical or mental pain or suffering intentionally inflicted for purposes such as obtaining information or a confession, punishment, intimidation or coercion, or discrimination, by or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity.[6]
Can my family be included if I get withholding of removal?
The family provision in the asylum statute lets the spouse or child of a person granted asylum receive the same status.[7] It is written for asylum. Family members seeking protection through withholding or CAT should ask about their own claims.
Can I get a green card through withholding or CAT?
The asylee adjustment statute applies to people granted asylum, after at least one year of physical presence following the grant and other requirements.[8] Withholding and CAT protection are not covered by that statute, so ask a lawyer what other route, if any, fits your facts.
Sources
- 8 U.S.C. § 1101(a)(42)(A) — Legal Information Institute, Cornell Law School
- 8 U.S.C. § 1158(b)(1)(B)(i)-(ii) — Legal Information Institute, Cornell Law School
- 8 C.F.R. § 1208.16(b)(2) — Legal Information Institute, Cornell Law School
- 8 C.F.R. § 208.4(a) — Legal Information Institute, Cornell Law School
- 8 C.F.R. § 1208.16(c)(2) — Legal Information Institute, Cornell Law School
- 8 C.F.R. § 1208.18(a)(1) — Legal Information Institute, Cornell Law School
- 8 U.S.C. § 1158(b)(3)(A) — Legal Information Institute, Cornell Law School
- 8 U.S.C. § 1159(b) — Legal Information Institute, Cornell Law School
- 8 C.F.R. § 1208.17(a) — Legal Information Institute, Cornell Law School
- 8 U.S.C. § 1158(c)(1)-(2) — Legal Information Institute, Cornell Law School
- 8 U.S.C. § 1231(b)(3)(A) — Legal Information Institute, Cornell Law School
- 8 U.S.C. § 1158(a)(2)(B) — Legal Information Institute, Cornell Law School
- 8 U.S.C. § 1158(a)(2)(D) — Legal Information Institute, Cornell Law School
- 8 U.S.C. § 1158(b)(2)(A) — Legal Information Institute, Cornell Law School
- 8 C.F.R. § 1208.16(d)(2) — Legal Information Institute, Cornell Law School
- 8 U.S.C. § 1158(a)(2)(C) — Legal Information Institute, Cornell Law School
- 8 C.F.R. § 1208.16(c)(1) — Legal Information Institute, Cornell Law School
- USCIS, Obtaining Asylum in the United States — uscis.gov
- USCIS, Obtaining Asylum in the United States (alert) — uscis.gov
- 8 C.F.R. § 208.2(b) — Legal Information Institute, Cornell Law School