Protection under withholding of removal is an important option for noncitizens who do not meet the requirements for asylum but can establish a clear probability they will be tortured or persecuted if they return to their home country. There are two types of withholding of removal protection, both of which can only be pursued in Immigration court: withholding of removal under the Immigration Nationality Act (INA) and CAT withholding of removal under 8 CFR § 1208.16. There is a second type of CAT known as deferral of removal under 8 CFR § 1208.17(a).
An applicant for withholding of removal under INA, must show that his or her life or freedom would be threatened in the country of removal because of his or her race, religion, nationality, political opinion, or membership in a particular social group. This requires the applicant to establish a clear probability of persecution on account of a protected ground if returned to the country of removal.
Whereas, an applicant seeking protection under CAT, 8 CFR § 1208.16 or 8 CFR § 1208.17(a), must establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal. According to international and U.S. law, a person cannot be returned to a country where they are likely to face torture. The United Nations Convention against Torture and Other Cruel, Inhumane, or Degrading Treatment or Punishment (“CAT” or “the Convention”), requires countries that sign-on, to condemn and prohibit torture. The United States became a signatory to CAT in 1988 and Congress ratified the treaty in 1994. In 1998, as part of the Foreign Affairs Reform and Restructuring Act (“FARRA”), the U.S. officially announced its plan to implement CAT.
CAT withholding of removal under 8 CFR § 1208.16 is subject to grounds of mandatory denial if it’s established the individual has been convicted of a “particular serious crime” or an aggravated felony for which the term of imprisonment was five years or more; engaged in the persecution of others; committed a serious non-political crime outside the U.S., and/or been deemed a danger to the security of the United States. On the other hand, CAT deferral of removal under 8 CFR § 1208.17(a), offers protection for those individuals who are ineligible for withholding due to one or more grounds for mandatory denial provided above for withholding under CAT. The only difference in the benefits conferred by withholding under CAT versus deferral under CAT is that the procedures for terminating deferral or removal benefits are easier for the government than terminating withholding under CAT. Otherwise, both allow the individual to stay in the United States and apply for employment authorization. Unlike asylum, relief under the Convention is not discretionary, so for those that meet the eligibility requirements, the immigration judge must grant protection.
An immigration judge can consider a CAT application in two contexts: (1) removal proceedings that are still pending; and (2) withholding-only proceedings where the government seeks to reinstate a prior removal order or seeks to enter an administrative order of removal against a noncitizen who has been convicted of an aggravated felony. In removal proceedings, a respondent’s intent to apply for CAT relief should be stated at the master calendar hearing when pleadings are entered. In withholding-only proceedings, the respondent’s options for relief will be limited to withholding of removal under the INA and/or CAT relief, and only with respect to the country or countries previously designated in the original removal order if a prior removal order is being reinstated.
CAT relief does not confer lawful immigration status or a path to permanent residency. Rather, it will only prevent deportation of the applicant to the specific country or countries to which removal has been withheld or deferred. So, after a CAT grant, if a different country will accept the person, they can be deported to that country.
At Samavati & Samavati Law Firm, we are committed to protecting individuals from returning to their home country because of fear of persecution or torture. If you believe you will be persecution or tortured if returned to your home country, contact us today for a no charge case evaluation.