If you have fled your country but found you are not eligible for asylum in the United States, yet you are here and you fear returning home, you might be able to apply for one of two other forms of protection, either:
- withholding of removal, or
- protection under the Convention Against Torture (CAT).
These are two different types of applications made before an immigration judge that, if successful, will prevent you from being immediately removed (deported) to your home country. Many applicants request them at the same time they request asylum (using Form I-589), so as to have a backup alternative. However, neither withholding or removal nor CAT protection comes with all the benefits that asylum does, and neither leads to a U.S. green card (lawful permanent residence).
Let’s look more closely at each of these forms of protection and what they offer.
WARNING: Although both withholding of removal and CAT protection can protect people from being deported home, that might not stop the U.S. government from sending them to a third country. In fact, the Trump administration has begun doing just that. This has been challenged in court, but the proceedings are ongoing, and may end up at the U.S. Supreme Court.
What Is Withholding of Removal?
The United States is part of an international agreement (a “treaty”) that prevents it from sending someone back to their home country if the person’s life or freedom would be threatened because of race, religion, nationality, political opinion, or membership in a particular social group. Those are the basic grounds for asylum. However, some people who have a genuine reason to fear returning home are nevertheless barred from receiving asylum, for example because they missed the one-year filing deadline, were convicted of a certain type of crime, or previously applied for and were denied asylum.
To comply with this treaty and protect such people, the United States created withholding of removal. It provides the bare minimum protection: no path to a green card, only a temporary promise not to deport the person, plus a work permit.
To qualify for withholding of removal, you would need to prove that it is “more likely than not” that your life or freedom would be threatened in your home country because of your race, religion, nationality, political opinion, or membership in a particular social group. This includes proving it is more likely than not that you will suffer persecution in the future. The easiest way to do that is to show (if it’s true) that you suffered persecution in the past. In that case, it will be presumed that you will suffer persecution in the future.
If you prove these things, then it is mandatory that your withholding case be approved, with one exception. You will not be approved for withholding of removal if you are “barred” because of having:
- persecuted others
- been convicted of a “particularly serious crime”
- committed a serious nonpolitical crime outside of the United States, or
- been affiliated with terrorism.
How to Apply for Withholding of Removal in the U.S.
You can apply for withholding of removal only once you're before an immigration judge. This means that you must be in removal (deportation) proceedings. At a preliminary, “master calendar hearing,” you must tell the immigration judge that you plan to apply for withholding of removal because you fear persecution if returned to your country. The judge will then give you a deadline to file your application and supporting documents.
You apply for withholding of removal on USCIS Form I-589, the same form as is used for asylum. It is important to fill out the Form I-589 completely and honestly.
You will also need to submit documents that support and show the truthfulness of your application. Every case is different, but examples of commonly relevant supporting documents are (similarly to those used for an asylum case):
- a detailed statement by you explaining why your life or freedom would be threatened in your country
- medical records or reports showing you suffered harm in the past
- police records showing you reported incidents of threats or harm
- photographs of past injuries
- sworn statements from people who witnessed harm you suffered, and
- articles or reports that show the conditions in your country.
You must send a copy of your application and supporting documents to the government attorney as well. The more official the documents, the more convincing they will be.
After meeting the deadlines for submitting your I-589 application and supporting documents, you will have to attend an “individual hearing” before the immigration judge. Here, you will testify about the information in your application. The immigration judge and government attorney will ask questions about the events you described. You may also present witnesses to testify about what happened to you or what would likely happen if you returned to your home country.
At the end of this hearing, the judge will likely either approve (grant) or deny your application. Or, the immigration judge might "continue" your case. That means asking you to come back for another hearing to either present more evidence. Or the judge might set a date for you to come hear the decision on your case.
What Happens When You Are Granted Withholding of Removal
If your application for withholding of removal is granted, you will be allowed to remain in the United States and apply for a work permit if there is no safe third country you could be removed to. If, however, you have permission or status to live in another country where your life or freedom would not be threatened, and if that country agrees to take you, you will be sent there instead of remaining in the United States.
Your permission to stay in the United States under a grant of withholding is not necessarily permanent. If conditions in your country change so that it would be safe for you to return, then the U.S. government may terminate your withholding of removal, which means you could be deported.
Being granted withholding of removal does not give permission for your spouse and children to stay in the United States also—it only gives permission for you to stay. You will also not be allowed to return to the United States if you travel outside of the United States. Withholding of removal is not a path to a green card.
What Is CAT Protection?
Like with withholding of removal, the United States is part of a treaty that prevents the U.S. government from sending people back to a home country where they’d be subjected to torture. To comply, the U.S. government allows people to apply for protection under the Convention Against Torture ( “CAT protection”).
To qualify, you do NOT have to prove a fear based on your race, religion, nationality, political opinion, or membership in a particular social group, like you would with asylum or withholding of removal. Instead, you must prove that it is “more likely than not” that you would suffer torture in your home country.
While torture might sound like a straightforward concept, it actually requires proving multiple things. First, you must prove the harm you fear would be severe physical or mental pain or suffering. Second, you must prove that the infliction of this pain or suffering would be intentional and unlawful. An example of lawful pain or suffering is when a person commits a crime that is subject to the death penalty, and the person is lawfully sentenced to death. Finally, you must prove that a government official would consent to you being tortured.
If you prove that you qualify for CAT protection, it is mandatory that your application be approved. The advantage of applying for CAT protection is that there are no bars to approval. If you are prevented from applying for withholding of removal for one of the reasons explained above, you might consider applying for CAT protection.
How to Apply for CAT Protection in the United States
The process of applying for CAT protection is similar to applying for withholding of removal. You can apply only with an immigration judge. You will need to tell the judge at the master calendar hearing that you plan to apply for CAT protection and meet the deadlines the judge sets. You also apply for CAT protection on USCIS Form I-589.
As with withholding of removal, you will need to submit documents that support the truthfulness of your application and send a copy of your submission to the government attorney. Again, every case is different, but examples of supporting documents are:
- a detailed statement by you explaining what torture you fear, why you would be tortured, and why the government would allow you to be tortured
- medical records showing you suffered torture in the past
- records showing you reported previous torture to government authorities
- photographs of past injuries
- sworn statements from people who witnessed torture you suffered, and
- articles or reports that show the conditions of torture in your country.
After submitting your application and supporting documents, you will have an individual hearing where you and any witnesses will testify. At the end of this hearing, the immigration judge will most likely make a decision to approve or deny your case.
What Happens When You Are Granted CAT Protection
The result of being granted CAT protection is almost identical to being granted withholding of removal. The U.S. government will remove you to a safe third country if it can identify one, your spouse or children will not be covered, and you cannot travel and return to the United States. If conditions change in your home country, the U.S. government may terminate your CAT protection, which could lead in your being removed to your home country.
The benefits of being granted CAT protection include being given permission to remain in the United States and being allowed to apply for a work permit.
An Experienced Attorney Can Help With a Withholding of Removal or CAT Application
Applying for withholding of removal or CAT protection can be complicated, as are any proceedings in U.S. immigration court. You may be detained while you are trying to prepare your application, and it is your job to prove that you qualify.
Because the outcome of your case could mean the difference between being protected and being returned to a country where you fear harm, consider contacting an experienced attorney to help you prepare your case.