There are three main forms of legal protections available to people fleeing persecution and torture in their homeland. Asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”).
A person can receive asylum in the United States, regardless of how he or she arrived, if they prove that they were either persecuted or have a “well-founded fear of future” persecution on account of one of five “protected grounds.” Those protected grounds are political opinion, race, religion, nationality, or “membership in a particular social group.” In addition, the harm suffered, or the harm feared, must be carried out by government officials or by private individuals whom the person’s home government is unwilling or unable to control.
In addition, to be eligible for asylum, a person must apply within one-year of arriving in the U.S. There are exceptions however, such as where there are “exceptional circumstances” which explain their failure to apply within one-year.
A person seeking asylum in the U.S. does so by filing Form I-589. This can be done “affirmatively,” which is for people who are not in removal proceedings (facing deportation before an immigration judge). Affirmative asylum applications are filed with USCIS. Alternatively, a person can file for asylum “defensively” when a person is already in removal proceedings. Applicants request asylum as a defense against removal from the United States.
Withholding of Removal and Protection Under the Convention Against Torture
For those who are not eligible for asylum (because they did not apply within one-year of arrival or because of certain criminal convictions), non-citizens can seek “withholding of removal” and/or protection under the Convention Against Torture. These forms of “relief” from removal require a higher burden of proof, and do not afford the person full legal status in the United States. Being granted withholding of removal or protection under the Torture Convention only restricts the government from deporting a person to their home country. If the person can be sent to a third country, the government is allowed to do so. Further, unlike asylum, a person who has been granted withholding or CAT protection cannot petition for their family members to come to the U.S. or, if the family members are already present, cannot petition for them to obtain legal status. Consequently, the importance of applying for asylum within one-year of arrival cannot be understated. Do not delay – if you fear harm in your country, seek legal advise on how and whether to proceed with an application for asylum.