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Asylum, Application for Withholding of Removal, and U.N. Convention Against Torture


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Generally, people in the United States who have "well-founded fear" of persecution and meet certain criteria may apply for Asylum. Asylum is a discretionary remedy. The USCIS or an immigration judge may deny Asylum for a variety of reasons. A denial may or may not affect the alien's status, depending on whether the alien is here lawfully or not. However, if the USCIS or the Immigration Court determined that the application is a fraudulent, the alien will be removed and permanently barred from entering the U.S.

To qualify as an "Asylee" (an alien that is seeking Asylum status), the alien must meet the definition of a refugee. The difference between an Asylee and a refugee is that an Asylee is inside the U.S. or in one of its territories. A refugee is one that is outside of his country (in a third country although there are some exceptions to this requirement). A "refugee" is defined in Section 101, 8 U.S.C. 1101 of the Immigration and Nationality Act.

"The term 'refugee' means
(A) any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion...."
(Emphasis added).

In addition, INS Regulations at 8 C.F.R §208 provide that an Application for Asylum can be approved when the applicant has a "well founded fear" of persecution based on:

"account of race, religion, nationality, membership in a particular social group, or political opinion, and that he is unable, or unwilling to return to or avail himself of the protection of that country [of nationality or last habitual residence] owing to such persecution"

Thus, to be qualified as an Asylee, the alien must demonstrate the following:

Requirements for Asylum Application:

  • Physical Presence – An alien who is physically present in the United States or who is applying for admission may apply for Asylum, irrespective of his or her status. However, aliens in expedited removals (regardless of whether the alien is at the Point of Entry "POE" or within 100 miles of the U.S. and Mexico/Canada border), may not be considered as aliens "within the U.S."
  • Well Founded Fear of Persecution – An alien that is applying for Asylum must demonstrate that he or she has "well founded fear of persecution." Evidence of past persecution, although not required, will be prima facie evidence of well founded fear of future persecution. If there is no evidence of past persecution, the alien must show that he/she has credible fear of future persecution.
  • Qualified Group – At least one basis for persecution must be based on race, religion, nationality, political opinion, or membership to a particular group.
  • Unable To Return To The Country of Last Residence – The alien must not be able to return to the country of last residence because of past persecution or well founded fear of future persecution.
  • Time Requirement – An alien must apply for Asylum within one year of physical presence in the United States. The alien need not be documented. This requirement may be waived base on extraordinary circumstances, such as changed circumstances or a change of the alien's country condition after the alien resided in the U.S. for one year or more that would not allow him to file the application within the time requirement.
  • Bar of Eligibility – An alien who is barred based on one of the following reasons may not apply for Asylum:
    • Aliens who did not apply within 1-year of entering into the U.S. (documented or undocumented), a waiver may be available;
    • Aliens who may be safely removed to another country;
    • Aliens who were previously denied of an Asylum application (waivers are available where the alien can show changed circumstances). In addition, if USCIS denied the Asylum application, and is now currently in the immigration court, the alien can apply for Asylum with the immigration judge;
    • An alien who participated in the persecutions of others in any way;
    • An alien who was "convicted" of a serious crime that may be a danger to the U.S., U.S.'s security, or it's citizens or residence;
    • An alien who may have "committed" a serious crime that is a non-political crime (may not apply for Asylum but may be eligible under the application for withholding of removal and/or Convention Against Torture);
    • An alien who may have committed a terrorist activity or has been ordered to be removed from the U.S. based on terrorist activities.

Application Procedures

An Asylum application may be filed with the USCIS or with the immigration court. An alien that is currently residing inside the United States may file an Asylum application with the USCIS, seeking to change his/her current status to an Asylee. If granted, the alien will be able to obtain permanent residency (Green Card). If USCIS rejects the alien's Asylum application, one of two things may happen, depending on the alien's legal status. If the alien is here in the U.S. legally, under some other status and is not out of status, the alien may continue to maintain that status (provided that USCIS does not determine that the Asylum application was fraudulent). If the alien is not in the U.S. legally, USCIS may refer the case to Immigration and Custom Enforcement (ICE) to file a "Notice to Appear" in immigration court for removal proceedings.

The alien may file for Asylum with the immigration court when ICE issued a Notice to Appear for removal proceedings, even if they were previously denied by USCIS. This is the second opportunity for the alien to show that he/she is qualified for Asylum status. If the Immigration Judge (IJ) granted Asylum to the alien, she/she may obtain a green card and become a permanent resident. However, if the Asylum application is denied, the alien may file an appeal with the Board of Immigration Appeals (BIA) within 30 days from the date of the denial. Within 90 days of the denial date, the alien may also file a "Motion to Reopen" with the (BIA).

Asylum Application In Expedited Removal (At The POE)
If an alien who is otherwise subject to expedited removal indicates a desire to apply for Asylum, he or she will be interviewed by an Asylum officer. The Asylum officer must determine whether the alien has a "credible fear of persecution." If the Asylum officer fails to find a fear of persecution, the alien will be removed. There is limited administrative review of this decision. Any alien who is able to demonstrate a credible fear of persecution will be detained, or may be allowed to parole into the U.S. (depending whether the person will be a danger to the U.S. or its citizens), while his or her non-expedited Asylum application is being processed with USCIS.

Asylum Approval
What are the rights of an alien who received an approval based on his Asylum application?

  • The person may apply for adjustment of status 1 year later (the date of "residency" will be back dated to the date of the Asylum approval for Naturalization purposes);
  • The person may obtain employment authorization during the 1-year waiting period;
  • The person may be granted advance parole to travel outside the United States;
  • The Asylee's spouse and children, if included in the Asylum application and otherwise admissible, may also be granted Asylum; or
  • If the spouse and children are outside the United States, the Asylee may file Form I-730 to obtain a visa for them.

Application for Withholding of Removal
Under INA § 241(b)(3), the application for Asylum is also the application for withholding of removal. The standard for considering whether an alien qualifies for approval of an Asylum application is different from the requirements for withholding of removal. To qualify for withholding of removal, the alien must demonstrate that:

  • The alien's "life or freedom would be threatened" on grounds of race, religion, nationality, political opinion, or membership in a particular social group;
    • There is a "clear probability" that the alien will be persecuted if he were to be removed, a much higher standard than "well founded fear" under an Asylum application;

If withholding of removal is granted, the Court must also consider the withholding of the alien's family members. However, the alien will NOT be able to adjust and may only be able to obtain employment authorization. Unlike an approval of an Asylum application, withholding of removal may be terminated if there is a change in the foreign country's condition in which the alien will not be persecuted if he/she were to be returned; if the withholding of removal application would be a fraud; or if the alien committed one of the crimes that would have made him/her ineligible prior to the approval.

United Nations Convention Against Torture

An alien may also apply under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) in conjunction with the Asylum application and the withholding of removal application. The alien must "check a box" on top of the I-589 application in order for the Service or the Court to consider CAT.

To qualify under CAT, the alien must show that "more likely than not," or there is "substantial grounds to believe" that he/she will be "tortured" upon being removed to his/her home country. Torture is an act by which severe pain or suffering (physical or mental) is intentionally inflicted to obtain information or a confession, for punishment, for intimidation or coercion, or for another reason based on discrimination; and the act was inflicted by the government, or by others under the government's consent, or by a group that the government is unwilling or unable to control.

If the alien is successful under CAT, the alien will be granted either (1) Withholding of Removal or (2) Deferral of Removal if granted unless the alien is ineligible under one of the categories stated above under Asylum Application.

Because there are substantial amounts of Asylum applications that are fraudulently filed, or those that are filed as a "remedy" for aliens, who otherwise would have no other status to legally remain in the United States to file for Asylum, USCIS and the Immigration Court, as well as the BIA, will scrutinize the applications and its requirements. It is essential that an applicant consult with an experienced attorney in this area of immigration law. The immigration attorneys at Smith & Garg, LLC. have successfully argued and appealed many immigration applications. Smith & Garg immigration attorneys have the knowledge, experience, and confidence to help you in your immigration matters. Please feel free to give us a call at 281-210-0010 or to contact us online. If you are not in the Houston area, we can schedule a time for a telephonic consultation at your convenience.