Ineligible for Asylum? Options to Stay in the U.S.
If you came to the U.S. hoping to get asylum, but you're not eligible, you may have two other legal options: The U.N. Convention Against Torture and Withholding of Removal.
Even if you don't qualify for asylum in the United States, you may be able to remain here based on either a legal concept called withholding of removal, or by requesting protection under the U.N. Torture Convention. (For what it takes to qualify for U.S. asylum, see Who Is Eligible for Asylum or Refugee Protection in The U.S.?
Withholding of Removal
Withholding of removal is something you ask for as a defense in deportation (removal) proceedings. The idea is that if you can show that you would be "more likely than not" to face persecution if returned to your country (or there's a "clear probability"), you may qualify to avoid removal to your country of origin. (This remedy comes from the Immigration and Nationality Act at INA §241(b)(3); 8 USC §1231 (b)(3).)
The standard for withholding is harder to meet than the standard for asylum. However, it is very useful in cases where, for example, you missed the one-year deadline for applying for asylum, or you have committed crimes that make you ineligible for asylum but not ineligible for withholding. There are still some people who are barred from withholding, however, including those who have persecuted others, or have been convicted of a particularly serious crime, such as an aggravated felony. (For more on this topic, see What's an "Aggravated Felony" Under U.S. Immigration Law?)
In addition, withholding is a mandatory form of relief, meaning that if you qualify, the judge must grant it to you. This differs from asylum, which is discretionary—meaning that the judge can exercise his or her own opinion in deciding whether you merit relief.
Withholding of removal isn’t the best of remedies. If you are granted withholding, this essentially means that although you won’t be granted asylum or the right to later get a green card, you won’t be removed from the U.S. to your home country (though you might be removed to a third country, if one will have you). You cannot (unlike asylees or refugees) petition for family members to join you in the United States. You may be subjected to regular oversight, such as an electronic monitoring program or having to comply with monthly in-person check-ins or other requirements. On the plus side, you will be allowed to work while you are in the United States.
Also be cautioned that, if you’re granted withholding and you leave the U.S. on your own, you won’t be permitted to return, because you’ll have an order of removal in your file.
U.N. Convention Against Torture
Another alternate remedy, for people who can show that it is more likely than not that they would be tortured if returned to their home country, is available under an international treaty called the U.N. Convention Against Torture. Torture includes any act done by or with the consent or acquiescence of a public official, by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining information or a confession, punishing the person, intimidating or coercing that person or a third person, or for any other reason based on discrimination of any kind.
You can gain protection under this Convention without having to show that the persecution you experienced or fear is on account of one of the five protected grounds—race, religion, nationality, membership in a particular social group, or political opinion. However, these cases are not often granted, since it is hard to prove that you’re more likely than not to face torture.
Like withholding, this section of the law is helpful for people who missed the one-year asylum filing deadline or have committed crimes. Even serious crimes or aggravated felonies won’t bar you from Torture Convention relief, though you may be subjected to monitoring or kept in detention if you appear to be a danger to the United States.
As with grants of withholding of removal, people granted relief under the Convention Against Torture won’t be removed from the U.S. to their home country (though they might be removed to a third country, if one is available). They cannot petition for family members to join them in the United States. On the plus side, they will be allowed to work while in the United States.
How Do You Apply for Withholding or Protection Under the Torture Convention?
You don’t need to separately apply for these remedies—applying for political asylum on Form I-589 will automatically include them, and they will be considered at such time as you appear before an immigration judge. However, we strongly recommend that you have an attorney assist you with your case, particularly if you’re concerned that you won’t meet the basic grounds for asylum.