Asylum, Withholding of Removal, and Relief Under the Convention Against Torture (CAT)
If you are in the United States, and you have either suffered harm in your home country, or fear that you will suffer harm if you were to return, you may qualify for asylum, withholding of removal, or relief under the Convention Against Torture. These are three forms of protection that the U.S. government provides to people who have either suffered, or have reason to be afraid that they will suffer, harm in their home country. The harm you have suffered must have been on account of one of five reasons (also known as “protected grounds”):
- Political opinion, or
- Social group
U.S. immigration law does not define or offer examples of these reasons, so the government has to rely on prior asylum decisions to help decide whether to grant your case.
Affirmative vs. Defensive Applications
You can apply for one of these forms of relief in two ways: affirmatively or defensively. An affirmative application is made to USCIS. You may either be in lawful status or not, but you must not have not been placed into removal proceedings. USCIS processes your affirmative asylum application, and an “asylum officer” reviews your case and interviews you to determine whether you meet all of the requirements. If you are in removal proceedings, you may apply defensively with the Immigration Court. This means that you are asking the immigration judge not to remove or deport you from the U.S. because you fear future persecution based on one of the five protected grounds, or because you have suffered very severe harm in the past. The standards for proving your eligibility in both affirmative and defensive applications are the same, but the procedures are different and in complicated ways. A certified immigration attorney is your best guide for navigating through these differences.
Are There Any Bars to Asylum Protection?
Even if you are eligible for asylum, you may still be barred from getting it. If you have committed certain kinds of crimes, harmed others, or have been in the U.S. for more than one year, you may be disqualified from getting asylum. There are defenses to some of these bars. Contact us if you think you may have a bar against your case.
What are the differences between these three kinds of protection?
Of these three forms of protection, the benefits that come with a grant of asylum are most numerous:
- You can petition to bring qualifying family members to the U.S.;
- You can apply for work authorization in the U.S.;
- You can apply for a document that allows you to travel outside of the U.S.;
- You can apply for certain public benefits; and
- You can eventually file for lawful permanent residency (a green card) and naturalization, assuming you meet certain conditions.
If you are not eligible to apply for asylum, you can apply for Withholding of Removal or protection under the Convention Against Torture (CAT). However, the level of proof you must provide differs for these three forms of protection. For example, to apply for Withholding of Removal, you have to show that you have a higher likelihood of suffering future harm in your home country than you have to show when applying for asylum. In addition, if you are granted withholding, there is no path that allows you to apply for a green card. You also may not travel outside of the U.S. Under the Convention Against Torture, the harm you fear you will suffer must rise to the level of “torture” as defined in the Convention. Consult with our attorneys to determine the form of relief that best matches your particular circumstances.
What qualifies as harm?
The harm you suffered or fear you will suffer must be so severe as to be considered “persecution.” Like most aspects of the law of asylum, withholding of removal, and CAT relief, persecution is not specifically defined within the specific immigration law. However, it is commonly defined as “the infliction of suffering or harm upon those who differ in a manner that is regarded as offensive.” A qualified attorney will know how best to argue to an immigration judge or asylum officer that the harm you fear rises to the level of persecution.
What if I was harmed, or fear future harm, by somebody not associated with my home country’s government?
Even if a government official did not personally harm you, you may still be qualified for one of these forms of protection if your government has proven unwilling or unable to protect you. An example of this might be a case of domestic violence, where you have sought assistance from the police, and they have refused to help you.
What if the harm I have suffered does not seem to be because of one of the five reasons?
The five “protected grounds” of persecution have no easy definitions, and in many cases, the harm that an asylum seeker has suffered must be described in such a way as to show how it qualifies under U.S. immigration law. For example, it is possible to get asylum or withholding of removal for harm based on gang membership, domestic violence, or a political opinion that you do not hold, but that somebody in your country believes that you hold. It is not easy to show that these kinds of harm sometimes happen because of one of the five protected grounds. Camille K. Cook has extensive experience arguing difficult cases and successfully getting asylum for her clients. That is why you should contact us to see if you might qualify for asylum, withholding of removal, or CAT relief.
What if I want to apply for asylum, but I have been in the U.S. for more than one year?
There are exceptions to the one-year bar. For example, circumstances in your home country may have significantly changed since you left, causing you to fear harm upon your return. Or, you were in lawful status in the U.S. for some other reason, such as under a student visa. We have experience successfully arguing for the application of these exceptions to our clients. They require the preparation of evidence and legal arguments that can be complicated, so it is best to consult with us as soon as possible if you think you are qualified for asylum, withholding of removal, or CAT relief.