Withholding of Removal & Protection Under the Convention Against Torture

Protection when asylum is not available

Protection when asylum is not available

Asylum is not the only form of protection for people who fear returning to their home country. When asylum is barred — most often because the application was not filed within one year of arrival, or because of a prior removal order — withholding of removal and protection under the Convention Against Torture (CAT) may still prevent the government from sending you back to a country where you would be harmed.

Usher Law Group represents people seeking withholding and CAT protection in immigration court in New York and New Jersey, and on appeal to the Board of Immigration Appeals and the federal courts of appeals.

Withholding of removal — INA § 241(b)(3)

Withholding of removal prohibits the government from deporting a person to a country where their life or freedom would be threatened because of their race, religion, nationality, membership in a particular social group or political opinion — the same five grounds that apply in asylum cases.

• No one-year deadline. Unlike asylum, withholding can be requested even if you have been in the United States for many years.
• A higher standard of proof. You must show that persecution is more likely than not — a greater than 50% chance — rather than the "well-founded fear" required for asylum.
• Mandatory if proven. An immigration judge who finds you eligible must grant withholding; it is not discretionary.

Protection under the Convention Against Torture

CAT protection is available to a person who shows it is more likely than not that they would be tortured in the country of removal by, or with the consent or acquiescence of, a public official. No connection to race, religion, politics or another protected ground is required.

There are two forms of CAT protection. Withholding of removal under CAT is subject to the same criminal and security bars as statutory withholding. Deferral of removal under CAT has no criminal bars, which can make it the last available protection for someone with a serious conviction.

How withholding compares with asylum

Withholding and CAT protection keep you from being returned to the country where you face harm, but they provide fewer benefits than asylum:

• You can obtain work authorization, but there is no direct path to a green card or citizenship.
• Spouses and children are not included as derivatives — each family member must qualify on their own.
• The protection is country-specific; the government may, in limited circumstances, seek removal to a different country.
• Leaving the United States is generally treated as carrying out the removal order.

Because asylum offers more, we evaluate whether any exception to the one-year deadline — such as changed or extraordinary circumstances — applies before relying on withholding alone. In many cases all three forms of relief are requested together on Form I-589.

Bars to withholding of removal

Statutory withholding and CAT withholding are not available to a person who:

• assisted in the persecution of others;
• was convicted of a "particularly serious crime" — which includes aggravated felonies with an aggregate sentence of at least five years, and may include other offenses;
• committed a serious nonpolitical crime outside the United States before arriving; or
• is considered a danger to the security of the United States.

If a criminal conviction stands in the way, a motion to vacate the conviction or a request for deferral under CAT may still be possible. See also our crimmigration practice.

Prior removal orders and "withholding-only" cases

A person who re-entered the United States after being removed, and whose prior order is reinstated, is generally not eligible for asylum. If they express fear of return, they may be referred for a reasonable fear interview and, if it is passed, to "withholding-only" proceedings before an immigration judge, where withholding and CAT protection can be requested. Getting a lawyer involved before the interview can make a significant difference.

How we help

We gather the evidence these cases depend on — detailed declarations, country conditions reports, medical and psychological evaluations, witness statements and expert testimony — and prepare you to testify. We present the case in immigration court and, if relief is denied, pursue appeals to the Board of Immigration Appeals and petitions for review in the federal courts. Learn more about asylum and deportation defense.

Frequently asked questions