LEGAL GUIDE
Written by attorney Sung Hee Yu | Dec 17, 2010

Asylum, Withholding of Removal, CAT: Notes on Definitions, Ineligible Groups, and Comparison

Asylum, Withholding of Removal, CAT: Notes on Definitions, Ineligible Groups, and Comparison

Definitions

Both Asylum and Withholding of Removal require a fear of persecution on account of one of five protected grounds.

Persecution: Need not be physical and includes other violations of human rights, such as psychological torture, imposition of severe economic disadvantage, deprivations of liberty, food, housing, employment and other essentials.

Five protected grounds: The REAL ID Act of 2005 requires that one of the five grounds must be at least one central reason for persecuting the applicant.

  1. Race
  2. Religion
  3. Nationality
  4. Membership in a particular social group
  5. Political opinion

Ineligible groups

An applicant is ineligible for asylum if he falls into one of the following categories:

  • Persons who have participated in the persecution of others
  • Persons who were convicted of a serious crime and constitute a danger to the community.
  • Persons who have committed a serious non-political crime outside the United States
  • Persons who can reasonably be regarded as a security risk to the United States
  • Persons who are inadmissible on security grounds or are removable as terrorists
  • Persons who have firmly been resettled in a third country before coming to the United States

An applicant is ineligible for withholding if he falls into one of the following categories:

  • Persons who have participated in the persecution of others
  • Persons who were convicted of a serious crime and constitute a danger to the community
  • Persons who have committed a serious non-political crime outside the United States
  • Persons who can reasonably be regarded as a security risk to the United States

Asylum and Withholding Compared

Asylum:

  • Applicant cannot be removed to any country.
  • May be converted to lawful permanent residence after one year of asylum status.
  • Includes spouse and unmarried children less than 21 years of age
  • Burden: Show by preponderance of the evidence that there is a well-founded fear of future persecution on account of one of five grounds. Well-founded fear requirement is met if there is at least a 10 percent likelihood of persecution.

  • Asylum status is granted on a discretionary basis if the burden is met

  • An asylum-seeker is deemed not to have a well-founded fear of persecution if the applicant could avoid persecution by relocating within the country and if it would be reasonable to expect him to do so.

    • Where the persecutor is a non-state actor, the asylum-seeker has the burden of showing it would not be possible to relocate.
    • If applicant has experienced past persecution on account of one of five grounds, he is presumed to have a well-founded fear of future persecution unless a preponderance of the evidence shows that circumstances have changed and applicant no longer has a well-founded fear of future persecution.
    • In past-persecution cases, ICE may overcome the presumption of a well-founded fear if it can show that the asylum-seeker could avoid persecution by relocating to another part of the country.

Withholding:

  • Applicant can be removed to a country other than the one in which persecution is claimed.
  • Cannot be converted into any kind of permanent residence.
  • Available just to the applicant: NOT to applicant’s family
  • Burden: Show by preponderance of the evidence that there is a clear probability of persecution on account of one of five grounds.
  • Withholding status is mandatory if the burden is met
  • Objective test (satisfied with greater than 50 percent likelihood of persecution)
  • Withholding may not be granted if future persecution is unlikely.

Protection Under the Convention Against Torture

  • Prohibits one country from sending a person to another country where he would be in danger of torture without exception.
  • Applicant does not have to prove that torture would be on account of a protected ground.
  • Protection may result in one of two statuses: Withholding and deferral of removal. Neither of the statuses leads to permanent residency, neither allows for family members to enjoy protected status, and neither prohibits removal to a safe, third country.
  • Burden: Applicant must prove it is more likely than not that he will be tortured if returned to proposed country of removal.

  • Applicant must meet all of the following elements of torture:

  • An act that inflicts severe pain or suffering, mental or physical;

  • Intentional;

  • With the consent, instigation, or acquiescence of a person acting in an official capacity;

  • On a person or a third person who is in the custody or control of the torturer; and

  • For such purposes as coercing, intimidating, or punishing the person or a third person.

An applicant is ineligible for withholding under the CAT (but still eligible for deferral of removal) if he falls into one of the following categories:

  • Persecutor of others
  • Persons convicted of a particularly serious crime
  • Persons who pose a danger to the community or security of the United States
  • Persons about whom there are serious reasons to believe they have committed a serious non-political crime outside the United States.

  • Deferral of removal is an extremely limited protection: it does not confer lawful or permanent immigration status, it does not mean the person will be released from custody, and status may be terminated at any time if the judge finds there is no longer a likelihood of torture in the person’s country.

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