The requirements for asylum, withholding of removal, and protection under Article III of the UN Convention Against Torture (“CAT”) compared. Withholding Under the INA & Withholding Under CAT There is actually withholding of removal under INA §241(b)(3) and withholding of removal under CAT. Withholding under INA §241(b)(3) gives the applicant the burden of proving that his/her life or freedom would be threatened in the proposed country of removal on account of race, religion, nationality, membership in a particular social group, or political opinion. Withholding of removal under CAT does not require there to be a nexus between the harm and a protected ground (race, religion, nationality, political opinion, or membership in a particular social group). Most people say “withholding of removal” when referring to withholding of removal under INA 241(b)(3) and then combine withholding of removal under CAT and deferral of removal under CAT referring to both of them as “protections under CAT.” That is exactly what I’ve done here, so Primary Distinctions Between Asylum, Withholding, & CAT Withholding of removal is a higher standard than asylum despite granting fewer benefits, but it is not subject to the one-year filing deadline. A noncitizen who fails to establish reasonable possibility of persecution for asylum (a 10% chance can be sufficient) will not be able to establish eligibility for withholding since it is a higher burden of more likely than not (greater than 50% chance). CAT does not require that the persecution be based on a protected ground and requires the same likelihood of harm as withholding of removal, which is more likely than not ( or > 50% chance). However, for CAT the harm must meet the definition of torture. – ASYLUM WITHHOLDING CAT PROTECTION ONE-YEAR FILING DEADLINE Yes No No TYPE OF HARM Persecution Threat to life or freedom Torture LIKELIHOOD OF HARM Reasonable Possibility (A 10% chance can be sufficient) More likely than not (greater than 50% chance of occurrence) More likely than not > 50% chance NEXUS REQUIREMENT Yes–Persecution must be a central reason for the harm. Yes–Harm must be based on the protected ground. No nexus requirement. WHO IS INFLICTINGTHE HARM The Government or a non-government actor the government is unable or unwilling to control. The Government or a non-government actor the government is unable or unwilling to control. The Government or any person acting at the instigation of or with the consent or acquiescence of a public official Discretionary Yes (the Judge can deny as a matter of discretion even if you met the requirements of the statute). No. No. Reinstated removal order Bar to Asylum No bar. No bar. Criminal Bars Aggravated felony, Particularly Serious Crime,Serious nonpolitical crime bar Particularly Serious Crime, Serious nonpolitical crime bar No. This chart lacks details and exceptions that may exist under the law. There are other criminal bars and security bars to all of these forms of relief that are not listed here. Please check the statutes and regulations. Asylum, Withholding of Removal, Convention Against Torture. Footnotes:

A principal refugee admitted to the United States within the past 2 years or a principal asylee who was granted asylum within the past 2 years, may use the Form I-730 to petition for a spouse or child. Petitioning in this context meaning to request that a spouse or an unmarried child under 21 years of age join the principal asylee in the United States. In certain circumstances, unmarried adult sons/daughters over 21 years of age may be eligible for following-to-join immigration benefits if they fall within the protections set forth in the Child Status Protection Act. In some cases, USCIS may grant a waiver of the 2-year filing deadline for humanitarian reasons as explained in the Instructions for Form I-730. Catholic Legal Immigration Network, Inc. made a guide for Form I-730 that you can find here. Just keep in mind that the guide is from 2019 and there have been some changes to policy and procedure since then. Double check the USCIS website to make sure you read the information on the USCIS I-730 information page. Also, a link to the official USCIS instructions is provided below.  Form Instructions I-730 FILLABLE I-730 LEARN MORE

Fear interviews are part of the expedited removal process. When a person is put into the expedited removal process, if they express a fear of returning to their home country or request to seek asylum, they are first screened to see if they could establish that they have a fear of persecution or torture. Generally speaking, there are two “levels” of fear interviews, most commonly referred to as “credible fear” and “reasonable fear.” A person is said to have a “credible fear” if they can demonstrate a “significant possibility” that they will be able to establish eligibility for asylum or withholding of removal under the Immigration and Nationality Act  or withholding of removal or deferral of removal under the Convention Against Torture. A person establishing a “reasonable fear” of persecution or torture has to demonstrate a higher likelihood that they would be eligible for relief from removal. The fear screening process has been periodically altered by new rules issued by various presidential administrations. Those rules are also often the subject of litigation, making the exact process an individual is subjected to (including the standard of proof needed to establish a “credible” fear) subject to regular change. Additionally, many of the rules are applied only to a subset of individuals, often seemingly at random, due to changing logistical, diplomatic, or humanitarian factors. Therefore, the credible and reasonable fear interview process may be applied differently to different people depending on things such as when they arrived at the border, where they arrived, what country they arrived from, whether they entered at a port of entry or between ports of entry, and other considerations. At the credible or reasonable fear interview, if an individual is found by the asylum officer to have met the standard applied to them, they are then referred to proceedings where they can submit an application for asylum or other similar protections. Usually, this is done via a referral to an immigration court, where a person is put in removal proceedings initiated with a Notice to Appear. Some pilot programs such as that created by the Asylum Processing Rule created an alternative venue, where people would have their full asylum cases reviewed by an asylum officer rather than an immigration judge, on a significantly truncated timeline. If the asylum officer determines the person did not establish either credible or reasonable fear, their expedited removal order stays in place. Before removal, the individual may request review of the fear determination by an immigration judge. If the immigration judge overturns a negative fear finding, the individual is treated as if they passed their fear interview and is placed in further removal proceedings through which the individual can seek protection from removal, including asylum. If the immigration judge upholds the negative finding by the asylum officer, the individual will be removed from the United States. In Fiscal Year (FY) 2023 (a year in which the Title 42 pandemic border expulsion policy was in effect for eight out of 12 months), USCIS found 53,965 individuals to have credible fear. These individuals, many of whom were detained during this screening process, will be afforded an opportunity to apply for asylum defensively and establish that they meet the refugee definition. The number of credible fear cases has skyrocketed since the procedure was implemented—in FY 2009, USCIS completed 5,523 cases. Case completions reached an all-time high in FY 2023 at 148,440. In FY 2023, two-thirds of which occurred during Title 42, USCIS found 1,950 individuals to have reasonable fear.

Well-founded Fear of Persecution Definition of Persecution Although persecution is not specifically defined within the INA, the courts have held that “a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution.”  The United Nations High Commission on Refugees (UNHCR) has endorsed a similar standard in its Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees.  Persecution has also frequently been defined as “the infliction of suffering or harm upon those who differ in a way regarded as offensive.” Persecution is usually physical but can also be emotional or psychological.  Recognizing persecution is extremely fact-dependent and fact-specific. Although asylum adjudicators will determine what constitutes persecution on a case-by-case basis, they have consistently recognized certain types of behavior as persecution. The following five broad categories describe abuse that adjudicators may find rise to the level of persecution: Serious Physical Harm The most recognized form of persecution is the infliction of serious physical harm, including confinement, kidnapping, torture, and beatings.  Rape, sexual assault and other forms of gender-based violence are also persecution.  The rape and beating of an LGBTQ/H person on account of their sexual orientation, gender identity, and/or HIV status constitutes persecution. Many LGBTQ individuals have been raped or sexually assaulted as “punishment” for their sexual orientation or gender identity. In the case of Hernandez-Montiel, the Ninth Circuit found that there was persecution when a “gay man with a female sexual identity” was detained, strip-searched, sexually assaulted, and raped by police officers on more than one occasion and sexually assaulted and attacked by a group of men.  Threats of violence will generally not be sufficient to establish past persecution unless the threats themselves cause significant harm. “Threats standing alone…constitute persecution in only a small category of cases and only when the threats are so menacing as to cause significant actual suffering or harm.” link Threats will be more likely to establish future persecution if the applicant can demonstrate that the group who is making the threats has the will and ability to carry them out. link Female genital mutilation (FGM) is also a form of persecution. Although the threat of FGM in the future can demonstrate a well-founded fear of persecution, a recent Ninth Circuit case has held that genital mutilation is an ongoing act of persecution “which cannot constitute a change in circumstances sufficient to rebut the presumption of a well-founded fear.” link Thus, both past FGM and the threat of having the procedure can be the basis for a well-founded fear of persecution. Violence against an applicant’s family members can also support a case for asylum.  Coercive Medical and Psychological Treatment Certain types of medical and psychological treatment will demonstrate a well-founded fear of persecution. The Board of Immigration Appeals has found that “forced institutionalization, electroshock treatments and drug injections could constitute persecution.” The coercive family planning practiced by the Chinese government may also constitute persecution.  The most significant holding in this area is the Ninth Circuit decision in Pitcherskaia v. INS. 21 Pitcherskaia, a lesbian from Russia, was arrested and imprisoned on several occasions for protesting violence and discrimination against gays and lesbians in Russia. The militia threatened her with forced institutionalization and required her to attend therapy sessions. She was prescribed sedative medication which she successfully refused. In addition, an ex-girlfriend of hers was institutionalized against her will and was subjected to electric shock treatment and other treatments meant to ‘cure’ her of her sexual orientation. The Ninth Circuit ruled that it is not necessary for the persecutor to intend harm in order for unwanted medical or psychological treatment to amount to persecution, as long as the victim experiences the treatment as harmful. The proper test is whether or not a reasonable person would have found the suffering inflicted as offensive.  There have also been successful non-precedential Convention Against Torture claims for individuals living with HIV who were able to demonstrate that they would be incarcerated in sub-standard conditions if returned to their home countries. Finding that such incarceration would like lead to death, at least two Immigration Judges (IJs) have granted CAT under these circumstances.  Invidious Prosecution or Disproportionate Punishment for a Criminal Offense Asylum status will not be granted for criminal prosecution as a result of a violation of a fairly administered law. Prosecution may be considered persecution, however, if there is either severe punishment or pretextual prosecution. Asylum adjudicators will focus on whether the punishment under a country’s laws is disproportionately severe or whether the law or punishment is contrary to international human rights standards.  Economic Persecution and Other Forms of Severe Discrimination Generally, harassment and discrimination will not constitute persecution. Persecution is regarded as an extreme concept that differs from general discrimination against minority groups, link which requires “more than a few isolated incidents of verbal harassment or intimidation, unaccompanied by any physical punishment, infliction of harm, or significant deprivation of liberty.” link Severe forms of discrimination may however amount to persecution in some instances. Discrimination will amount to persecution “if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practice his religion, or his access to normally available educational facilities.” link Cumulative discrimination that is increasing in severity will have a higher chance of being considered persecution. For instance, the inability to travel safely within a country and forced expulsion from the country amount to persecution. One form of severe discrimination recognized by the courts is in the form of economic persecution. Economic persecution requires a probability of deliberate imposition of substantial economic disadvantage based on a protected ground. Severe discrimination may be a ground for applicants living with HIV to claim asylum. The discrimination, however, must go beyond inadequate medical treatment. In one unpublished decision, an IJ found that a married woman living with HIV would be subject to persecution on account of severe discrimination. 39 In making this decision, the IJ considered documentary evidence that people living with HIV lost their jobs when

What Is Asylum? Asylum is a form of protection granted to foreign nationals already in the United States or arriving at the border. To qualify, they must meet the international law definition of a ‘refugee.’ According to the United Nations 1951 Convention and the 1967 Protocol, a refugee is someone who cannot or will not return to their home country due to past persecution or a well-founded fear of future persecution based on factors such as race, religion, nationality, membership in a particular social group, or political opinion. The U.S. incorporated this definition into its immigration law through the Refugee Act of 1980. Asylum status is technically ‘discretionary,’ meaning that even if an individual meets the refugee definition, they may still be denied asylum. In such cases, an alternative form of protection called ‘withholding of removal’ may be available to safeguard them from harm. The United States, as a signatory to the 1967 Protocol, has legal obligations to protect those who qualify as refugees. The Refugee Act provides two paths to obtain refugee status: either from abroad as a resettled refugee or within the United States as an asylum seeker Affirmative Asylum When a noncitizen applies for asylum before they are in removal proceedings Defensive Asylum When a non-citizen is already in removal proceedings when they apply for asylum. Asylum Processing Rule Since May 31, 2022, certain individuals entering the United States undergo processing based on an interim final rule. Initially, they are placed in expedited removal. If they express fear of persecution or torture, they receive a credible fear interview, which initiates a defensive asylum claim. Instead of directly sending their case to an immigration judge, individuals processed under this rule are referred to an asylum officer for a non-adversarial Asylum Merits Interview within 21-45 days after the credible fear determination. This interview resembles an affirmative asylum claim. The asylum officer can either grant or deny asylum. If denied, the case proceeds to an immigration judge. Additionally, a person denied asylum by an asylum officer is also evaluated for eligibility for withholding of removal and protection under the Convention Against Torture—a key aspect of defensive asylum procedures. ONE-YEAR FILING DEADLINE An individual generally must apply for asylum within one year of their most recent arrival in the United States. In 2018, a federal district court found that  DHS is obligated to notify asylum seekers of this deadline in a class-action lawsuit that challenged the government’s failure to provide asylum seekers adequate notice of the one-year deadline and a uniform procedure for filing timely applications. Asylum seekers in the affirmative and defensive processes face many obstacles to meeting the one-year deadline. Some individuals face traumatic repercussions from their time in detention or journeying to the United States and may never know that a deadline exists. Even those who are aware of the deadline encounter systemic barriers, such as lengthy backlogs, that can make it impossible to file their application in a timely manner. In many cases, missing the one-year deadline is the sole reason the government denies an asylum application. Under the expedited asylum process, a person who passes a credible fear interview is considered to have applied for asylum, which means that the one-year filing deadline is automatically satisfied. PROVING ASYLUM For asylum applicants, INA § 208 (b)(1)(B)(ii) specifies, “The testimony of the applicant may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee.” Demeanor and Credibility The INA directs that an IJ in assessing credibility should consider the “totality of the circumstances” and “all relevant factors,” including: the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’s account, the consistency between the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor. The REAL ID Act states for asylum applicants that a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’s account, the consistency between the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record. See INA § 208(b)(1)(B)(iii). INA § 240(c)(4)(C). See also Matter of J-Y-C-, 24 I&N Dec. 260, 266 (BIA 2007) (holding that the IJ properly considered the totality of the circumstances in finding that the applicant lacked credibility based on his demeanor, implausible testimony, lack of corroboration, and inconsistent statements). Respondent Has Burden to Explain Inconsistencies In Matter of Y-I-M-, 28 27 I&N Dec. 724, 725 (BIA 2019), the BIA held that “if inconsistencies in the record are obvious or have previously been identified” by DHS or the IJ, the IJ is not required to give the respondent a specific opportunity to explain them.

For nearly a century, the United States has upheld a fundamental promise: no person shall be deported to a country where they would face persecution. In line with laws enacted to honor this commitment, tens of thousands of individuals seek protection in the United States each year. The majority of these individuals apply for asylum. Those who are granted asylum can pursue permanent residence in the United States and a pathway to citizenship. Additionally, they have the opportunity to request that their spouse and children join them in the United States. However, not everyone is eligible to apply for asylum. For those individuals who fear persecution in their home country but do not meet the criteria for asylum, an alternative avenue for protection exists, known as withholding of removal. This form of relief is more challenging to obtain and comes with fewer benefits. The Difference Between Asylum and Withholding of Removal An individual granted asylum enjoys several significant benefits, including protection from being returned to their home country. They are eligible to apply for work authorization in the United States, can request a Social Security card, seek permission for overseas travel, and have the option to petition for the reunification of family members in the United States. Asylees may also qualify for certain government programs such as Medicaid or Refugee Medical Assistance. It’s essential to understand that asylum is technically a discretionary benefit, and there are legal restrictions on who can be granted asylum. For instance, individuals who have been previously deported and subsequently reentered the United States, or those who did not apply for asylum within one year of their arrival, are prohibited from applying for asylum. In such cases, individuals who are ineligible for asylum may generally seek “withholding of removal” instead. Much like in the case of asylum, an individual granted withholding of removal is shielded from being sent back to their home country and is granted the right to remain in the United States, where they can work legally. However, it’s important to note that at the conclusion of the court process, an immigration judge issues a deportation order, but the government is instructed not to carry out that order. In essence, the person’s “removal” to their home country is “withheld.” Nevertheless, the government retains the authority to deport this individual to a different country if that country agrees to accept them. Withholding of removal offers a form of protection that is less certain compared to asylum, placing its recipients in a kind of limbo. Those granted withholding of removal may not leave the United States without executing the removal order. They are unable to petition for the reunification of family members in the United States, and there is no pathway to citizenship. Unlike asylum, in cases where a family seeks withholding of removal together, a judge may grant protection to a parent while denying it to the children, potentially leading to family separation. Furthermore, withholding of removal does not provide permanent protection or a route to permanent residence. If conditions improve in an individual’s home country, the government can revoke withholding of removal and once again seek their deportation. This revocation can occur even years after the person has been granted protection. Some individuals, including those who were convicted of “particularly serious crimes,” are not eligible forwithholding of removal. Noncitizens that are ineligible for withholding of removal are further limited to applying for relief under protection under the Convention Against Torture, a protection that is even more difficult to win than withholding of removal and that offers even fewer benefits. How Do I Apply For Withholding of Removal? Unlike asylum, which can be granted by asylum officers employed by U.S. Citizenship and Immigration Services (USCIS), withholding of removal is exclusively within the authority of immigration judges working within the immigration court system. Individuals may find themselves in immigration court through various means, including an unsuccessful asylum application, apprehension within the country by U.S. Immigration and Customs Enforcement (ICE), or apprehension by U.S. Customs and Border Protection (CBP) at or near the border. Withholding Only Proceedings In situations where individuals with prior deportation orders are apprehended after reentering the United States, the law allows for the reinstatement of the earlier removal order. If someone with a prior removal order who fears persecution is encountered by ICE or CBP, they are not eligible for full removal proceedings in immigration court but may seek withholding of removal in what are referred to as “Withholding Only Proceedings.” When an individual expresses a fear of persecution to an immigration officer who is considering the reinstatement of a previous removal order, the officer is mandated to initially refer the individual to an asylum officer. Those who can demonstrate to the asylum officer that they have a “reasonable fear” of persecution in their home country are subsequently sent to immigration court for a specialized form of removal proceedings, in which the only relief they may pursue are withholding of removal or protection under the Convention Against Torture. Withholding-only proceedings represent a relatively small subset of asylum in immigration court. In recent years, between 70,000 and 80,000 asylum seekers have been referred to immigration court annually through the credible fear process.24 In total, more than 213,000 people applied for asylum in Fiscal Year (FY) 2019. The most common pathway for individuals to enter withholding-only proceedings is through an interview conducted at the border with an asylum officer. Individuals without prior orders of deportation who can establish a “credible fear” of persecution in their home country are directed to standard removal proceedings, where they may apply for asylum. However, individuals with previous deportation orders are ineligible for asylum and face a more demanding burden of proof. If they can successfully demonstrate to the asylum officer that they have a “reasonable fear” of persecution in their home country, they are then directed to withholding-only removal proceedings, where they may seek withholding of removal, but not asylum. Since 2012, the number of individuals found to have a credible fear of persecution has increased from10,838 to

AFFIRMATIVE ASYLUM PROCESS ARRIVE IN THE UNITED STATES To apply for asylum you must be physically present in the United States APPLY To apply for asylum, you should file Form I-589, Application for Asylum and for Withholding of Removal, with USCIS within 1 year of your last arrival in the United States (unless you qualify for an exception to the 1-year filing deadline). biometrics You should read the ASC Appointment Notice and take it with you to your fingerprinting appointment at the ASC. You do not need to pay a fingerprinting fee as an asylum applicant. If you are also requesting asylum status for your spouse and children and they are with you in the United States, they will need to go with you to your ASC appointment. More information is available on the Preparing for Your Biometric Services Appointment page. INTERVIEW NOTICE Depending on where you live, we will schedule you for an interview with an asylum officer at either a USCIS asylum office or a USCIS field office (also called a circuit ride location). For more information about USCIS field and asylum offices, visit our Find A USCIS Office page. Your interview notice will tell you the date, location, and time of your asylum interview. As of Jan. 29, 2018, the USCIS Asylum Division is scheduling asylum interviews in the following order of priority:* 1st priority: Applications that were scheduled for an interview, but the interview had to be rescheduled at the applicant’s request or the needs of USCIS;2nd priority: Applications that have been pending 21 days or less since filing;3rd priority: All other pending affirmative asylum applications will be scheduled for interviews starting with newer filings and working back towards older filings.*This scheduling approach was first established following the asylum reforms of 1995 (PDF, 22.31 KB), and was in place previously for 20 years. See Affirmative Asylum Interview Scheduling for more information. ATTEND INTERVIEW You may bring an attorney or accredited representative to the interview. You must also bring your spouse and any children seeking derivative asylum benefits to the interview. If you cannot proceed with the interview in English you must bring an interpreter. The interview will generally last about 1 hour, although the time may vary depending on the case. You may also bring witnesses to testify on your behalf. For more information about your asylum interview, see our Web page on Preparing for Your Asylum Interview. ASYLUM OFFICE DECIDES You must meet the definition of a refugee in order to be eligible for asylum. The asylum officer will determine whether you: A supervisory asylum officer reviews the asylum officer’s decision to ensure it is consistent with the law. Depending on the case, the supervisory asylum officer may refer the decision to asylum division staff at USCIS headquarters for additional review.If you are also requesting asylum status for your spouse and children and they are with you in the United States, they will need to go with you to your ASC appointment. RECEIVE DECISION In most cases, you will return to the asylum office to pick up the decision 2 weeks after the asylum officer interviewed you.Longer processing times may be required if you: Are currently in valid immigration status; Were interviewed at a USCIS field office; Have pending security checks; or Have a case that is being reviewed by asylum division staff at USCISheadquarters. USCIS will normally mail your decision to you in these situations.