Withholding of Removal and Convention Against Torture: Protection When Asylum Is Not Available

Three Pillars of Protection From Removal

When a person fears returning to their home country, U.S. immigration law offers three distinct forms of protection. Asylum is the most well known and the most generous. Withholding of removal under INA Section 241(b)(3) and protection under the Convention Against Torture (CAT) sit alongside asylum and frequently make the difference between safety and deportation when asylum is unavailable.

Many people assume that if they cannot win asylum, they have no options. That assumption costs people their lives. Withholding of removal and CAT protection have different legal standards, different bars, and different consequences from asylum. They are mandatory rather than discretionary, which means a judge who finds the criteria are met is required by law to grant the protection.

This guide walks through how withholding of removal and CAT protection work, who they serve, and when they may be the right tool for a case. If you are facing removal proceedings or have been told you missed the asylum deadline, please read carefully and then speak with an experienced immigration attorney about your specific situation.

Why Asylum May Not Be an Option

Most people who flee persecution try asylum first. Asylum is generous because it leads to a green card after one year, allows family petitions, and permits international travel with refugee travel documents. Asylum is also harder to access than many people realize.

The most common barrier is the one-year filing deadline. Under INA Section 208(a)(2)(B), an asylum application must generally be filed within one year of the applicant's last arrival in the United States. Limited exceptions exist for changed circumstances and extraordinary circumstances, but the deadline disqualifies many people who waited too long, who did not know about the deadline, or who were advised incorrectly.

Other barriers include criminal convictions, certain past actions, security concerns, and prior asylum denials. When asylum is closed off for any of these reasons, the asylum application form itself, Form I-589, also functions as an application for withholding of removal and CAT protection. The same single filing preserves all three forms of relief.

What Is Withholding of Removal?

Withholding of removal is a mandatory form of protection codified at INA Section 241(b)(3) and 8 CFR Section 1208.16. It bars the government from removing a person to a country where their life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion.

The five protected grounds for withholding of removal mirror the protected grounds for asylum and for refugee status. The legal analysis of those grounds draws from the same body of case law. Where withholding of removal differs sharply from asylum is in the burden of proof and the consequences of a grant.

The "More Likely Than Not" Standard

To win withholding of removal, an applicant must prove it is more likely than not that their life or freedom would be threatened in the country of removal because of a protected ground. The Supreme Court has interpreted this standard as a greater than 50 percent probability of persecution.

This is a higher burden than the asylum standard, which is a well-founded fear of persecution. Federal courts have read the well-founded fear standard as something close to a 10 percent chance. Withholding of removal therefore requires substantially stronger evidence of risk than asylum requires.

Mandatory Bars to Withholding

Even an applicant who proves a high probability of persecution can be barred from withholding of removal. The statutory bars include:

• Persecution of others. The applicant ordered, incited, assisted, or otherwise participated in the persecution of others on a protected ground.
• Particularly serious crime. The applicant was convicted of a particularly serious crime in the United States and constitutes a danger to the community. An aggravated felony with an aggregate sentence of at least five years is a per se particularly serious crime.
• Serious nonpolitical crime abroad. The applicant committed a serious nonpolitical crime outside the United States before arriving.
• Danger to security. There are reasonable grounds to regard the applicant as a danger to the security of the United States.
• Terrorism-related grounds. The applicant engaged in terrorist activity or is a representative of a terrorist organization.

These bars are statutory, not discretionary. If a bar applies, the immigration judge must deny withholding of removal. CAT deferral can still be available even when these bars close off withholding, which I explain below.

Benefits and Limits of a Withholding Grant

A grant of withholding of removal protects the person from being sent to the specific country where persecution is likely. It also unlocks employment authorization, allowing the recipient to apply for a work permit and to live and work lawfully in the United States.

The limits of withholding are significant. A withholding grant does not lead to a green card. It does not lead to citizenship. It does not allow the recipient to petition for a spouse or children to join them in the United States. It is country-specific, which means the government can still attempt to remove the person to a safe third country if one is identified. Leaving the United States typically executes the underlying removal order, so international travel is effectively impossible.

Importantly, a removal order is still issued. Withholding only halts the execution of that order to the country of feared persecution. The government can move to terminate withholding if conditions in the home country change in the future.

What Is Convention Against Torture Protection?

The Convention Against Torture is a treaty the United States ratified in 1994. Its implementing regulations appear at 8 CFR Sections 1208.16 through 1208.18. CAT prohibits the United States from removing a person to a country where they would more likely than not be tortured.

CAT protection has two forms. Withholding of removal under CAT, governed by 8 CFR 1208.16(c), works like statutory withholding and provides similar benefits and similar bars. Deferral of removal under CAT, governed by 8 CFR 1208.17, is a narrower form of protection available only to people who would otherwise be eligible for CAT withholding but are barred by the mandatory grounds (such as a particularly serious crime).

The CAT Definition of Torture

Torture under CAT is defined in 8 CFR 1208.18(a). The definition has several specific elements:

• Severe pain or suffering. The harm must rise above ordinary mistreatment to severe physical or mental pain or suffering.
• Intentional infliction. The harm must be intentionally inflicted, not accidental.
• Specific purpose. The harm must be inflicted for a purpose such as obtaining information, punishment, intimidation, coercion, or discrimination.
• Custody or control. The victim must be in the custody or physical control of the person inflicting the harm.
• Public official involvement. The torture must be inflicted by, at the instigation of, or with the consent or acquiescence of a public official or other person acting in an official capacity.

The acquiescence requirement is one of the most litigated parts of CAT law. Federal courts have held that acquiescence requires the public official to have prior awareness of the torture and to have breached a legal responsibility to intervene. Awareness can be shown through actual knowledge or willful blindness.

This matters for cases involving torture by gangs, cartels, or non-state actors. If the applicant can show that government officials know about the torture and either look away or are complicit, CAT protection may be available even when the direct torturer is a private actor.

Five Important Differences From Asylum and Withholding

CAT protection has a different shape from the other forms of relief in five key ways.

First, there is no protected ground requirement. The applicant does not have to show race, religion, nationality, social group, or political opinion. Any reason for the torture qualifies as long as the other elements are met.

Second, there is no nexus requirement linking the harm to a protected characteristic. CAT cares about the fact of torture, not the motivation behind it.

Third, there is no one-year filing deadline. CAT can be raised at any time during removal proceedings.

Fourth, CAT deferral remains available even to people barred from withholding of removal because of a particularly serious crime. This makes CAT deferral the last line of protection for clients with serious criminal records who would otherwise be removed to countries where they face torture.

Fifth, the standard requires probability of torture rather than probability of persecution. The harm must be severe and must satisfy the technical CAT definition. General country conditions of poverty, violence, or instability are not enough on their own.

How These Protections Are Granted

Withholding of removal and CAT protection are most often granted by an immigration judge in removal proceedings. The applicant files Form I-589, the same form used for asylum, and identifies on the form which forms of relief are sought. Affirmative asylum applicants who file with USCIS but are referred to immigration court continue with the same I-589.

At the merits hearing, the applicant testifies, presents documentary evidence about country conditions, and may call expert and corroborating witnesses. The judge applies the legal standards and issues a written or oral decision. Either side can appeal to the Board of Immigration Appeals (BIA).

Detention is common in these cases. People in immigration custody pursue these claims while detained, often through video conferencing from detention facilities. Bond may be available depending on eligibility and the judge's discretion.

Who Should Consider These Protections

Withholding of removal and CAT protection are worth serious consideration for any of the following situations:

• The asylum one-year deadline has passed and no exception clearly applies.
• An asylum application was denied because of a discretionary bar but the applicant still faces serious harm at home.
• The applicant has a criminal record that may bar asylum but the harm at home is severe.
• The threat of harm comes from non-state actors that the government either supports or fails to control.
• The applicant fears torture for reasons that do not fit the asylum protected grounds, such as personal vendettas, gang retaliation, or general criminality with government complicity.
• The applicant has already been ordered removed and is seeking to reopen proceedings based on changed country conditions.

Frequently Asked Questions

Why You Need an Experienced Immigration Attorney

Cases that turn on withholding of removal and CAT protection are technically demanding. The legal standards differ from asylum in subtle ways that affect how evidence is gathered and presented. The bars are heavily litigated. Country conditions evidence must be thorough and current. Expert witnesses can change outcomes. A poorly developed record can mean the difference between protection and removal.

I have represented clients facing removal in immigration court across Massachusetts and beyond. I have seen cases that looked impossible become winnable when the right legal theory was identified, the right evidence was gathered, and the right witnesses were prepared. I have also seen cases that should have been won lost because of avoidable mistakes earlier in the process.

If you or a loved one is in removal proceedings, has missed the asylum deadline, or has a criminal record that complicates an asylum claim, do not give up. Withholding of removal and CAT protection are serious tools designed for exactly these situations. The right next step is a careful conversation with an attorney who knows this area of law.