In our previous article [BARS OR DISQUALIFYING FACTORS TO ASYLUM] we discussed on what grounds the government attorney may disqualify an asylum claim. In the end, we mentioned that asylum is discretionary. That means the Immigration Judge can decide not to grant asylum if the judge feels the applicant does not deserve it.
However, there are other forms of relief, or defenses to being removed, which an applicant can make that are not discretionary. They have a higher standard of evidence that must be proven, but if the applicant meets the higher standard, the Immigration Judge must not and cannot return the applicant to the country of persecution.
WITHHOLDING OF REMOVAL To qualify for withholding of removal, the applicant must show that it is more likely than not that the applicant’s life or freedom would be threatened on account of one of the protected grounds. See [REQUIREMENTS FOR ASYLUM] discussing the 5 protected grounds. The “more likely than not” standard in withholding of removal cases is more difficult to prove than the well-founded fear standard in asylum cases. But if the applicant meets the standard, the Immigration Judge cannot return the applicant to his or her country of persecution.
There are other ways withholding of removal differs from asylum. One difference is that the application is not barred if it is filed more than one year after the applicant’s entry to the United States. Also, being firmly resettled in another country before coming to the United States is not a bar to withholding of removal.
See [BARS OR DISQUALIFYING FACTORS TO ASYLUM] discussing the One Year Bar.
Given a choice between asylum and withholding of removal, asylum grants better benefits. With asylum, an applicant can apply for legal permanent status, also known as getting a green card, within one year of being granted asylum. Secondly, with asylum, an applicant can bring his or her immediate family to the United States. Immediate family consists of the applicant’s husband or wife, children and parents. It does not consist of brothers and sisters, or uncles and aunts.
On the other hand, withholding of removal does not give any kind of legal status. It only offers protection from being removed or deported. The only benefit one receives with withholding of removal is the ability to remain in the United States indefinitely and work legally.
CONVENTION AGAINST TORTURE OR “CAT” The Convention Against Torture is a United Nations treaty that the United States signed and implemented in 1988. The regulations require the Immigration Judge to consider all the evidence relevant to the possibility that the petitioner may be tortured in the future. Torture is defined as any act that causes severe pain and suffering, whether physical or mental. It is inflicted on a person to obtain information or a confession, or to punish, intimidate or coerce that person based on discrimination of any kind. It is inflicted by a person working for the government.
This is the key to a CAT claim. The torture must be inflicted by someone working for the government. If it is carried out by someone not affiliated by the government, the applicant must show that he or she reported the incident to the government (filed a police report or claim with the court), and the government did nothing to prosecute the claim.
A petitioner meets the required evidence standard if he or she can show that there is substantial grounds for believing the petitioner would be tortured if removed and that the government would do nothing to help them, either because the government is not capable or is involved and would look the other way.
Like withholding of removal, if the petitioner meets the evidence standard, the Immigration Judge cannot return the petitioner to a country where the petitioner would be tortured. Winning a CAT claim does not give the petitioner any legal status but it does prevent being returned and allows the petitioner to work legally in the United States.
We prepare withholding of removal and CAT claims the same way that we prepare asylum claims. See our article [HOW WE PREPARE AN ASYLUM CLAIM]. We prepare the asylum application, country conditions report, and brief with legal arguments. We then prepare the client for the difficult final hearing.