For individuals who are physically present in the United States and who are looking to apply for asylum, there are two additional forms of relief that could available if they fear being tortured in their country of origin. These additional possibilities are “Withholding of Removal” and “Protection under the United States Convention against Torture” which is commonly referred to as, CAT.
Differences in Requirements
The requirements can be more stringent for individuals applying for CAT protection and Withholding as opposed to those who are seeking asylum. However, there are advantages to applying for these forms of protection:
- Approval is mandatory. Any individual who is eligible for CAT or Withholding must be granted this protection. Case agents cannot make discretionary decisions.
- Barriers that might present you from qualifying for asylum may not block you from receiving Withholding or CAT protection.
Because of this, individuals who were unable to obtain asylum because of certain barriers that prevent them from qualifying should apply for these alternative types of protection. More information about asylum can be found by visiting our page:
What Is Withholding of Removal?
This protection prevents individuals from being forced to return to their country of origin when there is credible reason to believe that their life and freedom is at risk due to their race, nationality, belonging to a particular social group, or their religion.
You must clearly prove that you are a refugee and must demonstrate that there exists the probability of your persecution by either the government or an organization that the government cannot control if you return to your country of origin. Similar to asylum, if an individual can prove that they were persecuted in the past, it is assumed that they will be persecuted in the future upon return to their home country.
If You Meet Requirements – Protection Is Mandatory
One of the primary benefits of requesting withholding is that protection is mandatory. This means that if you meet all of the requirements of withholding, you will automatically be granted this form of relief. Discretionary factors do not come into play in granting this relief. For this reason, it is wise to apply for this relief as a backup if you feel you may be denied asylum based on factors such as a history of non-serious crimes or other discretionary factors.
Disqualifying Factors
Additionally, other circumstances that might prevent you from qualifying for asylum, such as passing the one year filing deadline or firm resettlement, are not applicable when applying for withholding. Conditions that would prevent you from applying to withholding include:
- Persecuting Others
- Conviction of Serious Crimes
- Committing Non-serious Political Crimes Outside of the United States
- Terrorism
Proving Eligibility for Withholding Is More Difficult Than Asylum
The basic grounds for withholding of removal and asylum are very similar. However, it is more difficult to qualify for withholding. This is because you must clearly show that it is more likely than not that you will be persecuted upon returning to your home country. The test is objective. It is your responsibility to present concrete, unquestionable evidence that includes country reports showing that more than likely you will be persecuted upon returning home.
What Happens after Being Granted Withholding?
Withholding of removal provides a smaller scope of protection than asylum does. It is country specific. This means that you will not be sent to countries where there is a high probability that you will be persecuted, but you could be moved to a third country where no probability of persecution exists.
It is also person specific. Your spouse and children will not receive withholding protection automatically just because you qualify for it. An immigration judge may determine on their own accord to grant asylum to your family if they file their own I– 589 applications for asylum.
Important Information to Remember
Witholding of removal can be a very good option for individuals who qualify. However, there are certain misconceptions regarding the status. Here are some important facts to know if you or a loved one is interested in applying for witholding:
- Receiving withholding protection does not automatically qualify you to become a legal permanent resident, receive a green card, or to become a naturalized citizen.
- You are not permitted to travel outside of the United States and will be banned from reentry if you do.
- You do not automatically receive the benefits that asylees do. For example, you will not automatically have the right to work or receive employment authorization documents.
Most importantly, the US government can terminate your withholding at its discretion. The Department of Homeland Security has the right to review your case if there is a change in the condition of the countries to which you were not to be removed and you may no longer qualify for this relief.
What Is CAT Protection?
Similar to withholding, the protection provided by CAT is mandatory as long as you meet all of the requirements. The US government cannot force you to return to a country where there are credible reasons for believing that you would be in danger and tortured.Qualification for CAT is dependent on the fact that you can show that it is more likely than not that you will be tortured if you return to the country from which you are claiming protection.
Unlike withholding, to receive CAT protection you must clearly show that the harm you fear falls under the government’s definition of torture. This includes intentional and unlawfully inflicting severe pain or suffering, be it physical or mental. This must be done with the consent of a public official. Additionally, the purpose of the torture is for punishment, intimidation, as the result of discrimination, or to obtain a confession.
Goals and Benefits of CAT
The primary goal of CAT protection is to protect you from returning to a country where you will be in danger of being tortured in the future. Proving past torture is a relevant factor. However, you must show and submit evidence such as country reports or articles in the news proving that it is more likely than not you will be tortured.
A significant benefit of CAT protection is that none of the barriers that may prevent you from being granted asylum exist. Additionally, the torture you would face in your home country does not need to be connected to the five protective grounds.
Limitations of Witholding and CAT
Both withholding and CAT protection have limited benefits. They both allow you to be transported to a safe third country. However, once you are no longer at risk of torture, your protection may be terminated.
Qualifying for Multiple Forms of Relief
If you qualify for multiple forms of relief, you will be provided with the one that grants the broader scope of protection. For example, if you qualify for asylum as well as CAT or withholding, you will be granted asylum since it provides the broadest scope of protection.
Contact Us to Learn More
If you are interested in learning if you or a loved one qualifies for withholding, CAT, or asylum, call Pride Immigration Law Firm PLLC today or send us a message online to explain your case. We are eager to help you make the best decision and give you the guidance you will need while going through any process.
Beeraj Patel, Esq.
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