Asylum and Withholding of Removal

There are three forms of relief based on an individual’s fear of persecution, harm, or torture in the native country--asylum, withholding of removal, and relief under the Convention Against Torture (CAT).

Asylum is the most common form of relief. An individual must prove to the immigration court that he or she has a "well-founded" or "reasonable" fear of harm if returned to the native country. The individual must show either past harm or fear of future harm as well as some evidence as to the motivation of the persecutor. Moreover, the applicant must show that there is direct or circumstantial evidence that this fear of harm is based on one of five statutory grounds--race, religion, nationality, political opinion, or membership in a particular social group. The "well-founded" standard means that a reasonable person in a similar situation would have a fear of harm (this may be as little as a 10 percent chance).

INS v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987).

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A well-founded fear can be shown by proving past persecution or by showing that there is reason to believe that an individual will be harmed in the future even if he or she has not been harmed in the past.

Withholding of removal is similar to asylum in that an individual must prove that there is some type of threat to his or her life or freedom. In addition, like asylum, the applicant must show that this threat is connected to one of the five statutory grounds--race, religion, nationality, political opinion, or membership in a particular social group. However, there are substantial differences between asylum and withholding of removal. Withholding of removal carries a higher burden of proof. An individual must show that it is "more likely than not" that his or her life or freedom will be threatened if returned. Thus, there must be better than a 50 percent chance of threat to the individual’s well-being.

INS. v. Stevic, 467 U.S. 407 (1984).

The relief granted under a withholding of removal approval is much more limited than relief through asylum. Unlike asylum, which leads to LPR status (a Green Card), withholding of removal does not lead to LPR status. Withholding of removal does not give an individual the possibility of travel. There is no derivative benefit to family members of an individual granted withholding of removal, whereas those granted asylum can bring spouses and children under 21 years old to the United States. Finally, withholding of removal is country specific. Thus, the government will withhold removal to the individual’s country of nationality. If the government can find another country to which the individual may be removed, then it may remove the individual to that country.

Withholding of removal is beneficial, however, because it is a mandatory form of relief, whereas asylum is discretionary. Article 33 (nonrefoulement or nonreturn of an individual who meets the refugee definition) of the 1951 Convention Relating to the Status of Refugees,

The 1951 Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150 (entered into force Apr. 22, 1954) (hereinafter Convention). A document to which the United States acceded by signing the 1967 Protocol Relating to the Status of Refugees, The 1967 Protocol relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267, art. I (entered into force Oct. 4, 1967) (hereinafter Protocol) makes withholding of removal mandatory for all treaty signatories. Like asylum, however, there are certain statutory bars against receipt based on prior criminal activity or persecution of other individuals.

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