ASYLUM, WITHHOLDING OF REMOVAL, & CONVENTION AGAINST TORTURE

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	Yes1	No	No
TYPE OF HARM	Persecution2	Threat to life or freedom	Torture3
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 INFLICTING THE 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 Asylum4	No bar.	No bar.
Criminal Bars	Aggravated felony5, Particularly Serious Crime6, Serious nonpolitical crime bar7.	Particularly Serious Crime, Serious nonpolitical crime bar	No.

Footnotes:

1. INA § 208(a)(2)(B); 8 C.F.R. § 1208.4(a) ↩︎
2. INA § 101(a)(42)(A) ↩︎
3. 8 C.F.R. § 1208.18(a) ↩︎
4. INA § 241(a)(5) ↩︎
5. INA § 208(b)(2)(B)(i) ↩︎
6. INA §§ 208(b)(2)(A)(ii), 241(b)(3)(B)(ii) ↩︎
7. INA §§ 208(b)(2)(A)(iii), 241(b)(3)(B)(iii) ↩︎

CHARTS: