REFUGEE STATUS, ASYLUM, WITHHOLDING OF REMOVAL, AND CONVENTION AGAINST TORTURE
During the Second World War, thousands of people attempted to escape Nazi-ravaged Europe, only to be turned away by almost every country in which they sought refuge, because they lacked the appropriate documentation.
After the war ended and the realities of torture and genocide became apparent, international treaties were signed, through which several countries agreed that people would be allowed to seek refuge from persecution in their home countries, even if they lacked proper immigration paperwork. In the United States, this resulted in the laws governing refugee status, asylum, withholding of removal, and the United Nations Convention against Torture.
Refugee Status
Refugee status comes from Section 101(a)(42) of the Immigration and Nationality Act. It says that any person who has " well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion" may apply to come to the United States as a refugee.
The "well-founded fear" standard means that there is a chance - even a 10% chance - that the person will be persecuted. The so-called nexus requirement says that the persecution must be on account of one of the five groups listed in the law (race, religion, nationality, membership in a particular social group, or political opinion). To be granted refugee status, a person must demonstrate both the "well-founded fear" of persecution and the nexus - i.e., that the persecution will be on account of race, religion, nationality, membership in a particular social group, or political opinion.
It is sometimes difficult to show that persecution actually exists, since few foreign governments willingly admit that persecution occurs in their countries. So in many cases, a person applying for refugee status must bring in secondary evidence, such as newspaper and magazine articles, opinions from experts (such as medical doctors and psychologists), and evidence that other relatives have been killed, tortured, or persecuted by the same person or people who now threaten the applicant.
Typically, a person applies for refugee status at a United States Embassy or Consulate.
Asylum
Asylum comes from Section 208 of the Immigration and Nationality Act and allows a person who is in the United States and meets the definition of "refugee" to apply to remain in the country. A person must apply for asylum within one year of entering the United States. The asylum application is sent directly to the United States Department of Homeland Security, unless the applicant is in removal (deportation) proceedings before the Immigration Court, in which case the asylum application is made directly to the Immigration Court.
One year after being granted asylum, a person may apply for permanent residency in the USA. Five years after getting permanent residency, that person may apply for U.S. citizenship.
Withholding of Removal
Withholding of Removal (also called "Restriction on Removal") comes from Section 241(b)(3) of the Immigration and Nationality Act. It is similar to asylum and has the same nexus requirement (which says that the persecution must be on account of race, religion, nationality, membership in a particular social group, or political opinion). However, there are a few differences between asylum and withholding of removal. For instance:
To get asylum (or refugee status), a person must demonstrate a well-founded fear of persecution. To get withholding of removal, a person must demonstrate a clear probability of persecution. The difference between the "well-founded fear" standard and the "clear probability" standard is that the clear probability standard requires a person to demonstrate that it is "more likely than not" (a virtual guarantee) that the persecution will occur.
Many crimes that would prevent a person from qualifying for asylum will not prevent the same person from getting withholding of removal.
Asylum's "one-year rule" (which requires asylum applications to be made within one year of arrival in the United States) does not exist with withholding of removal. As a result, while a person who arrived in the United States many years ago cannot apply for asylum (because of the "one-year rule"), that same person may apply for withholding of removal.
One year after being granted asylum, a person may apply for permanent residency, which may lead to United States citizenship in five years. By contrast, a person who is granted withholding of removal only gets a work permit, but this is not a path to citizenship.
Convention against Torture
The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was signed by several countries in 1985 and says that a person may not be returned to any country in which there is a clear probability of torture. This means that there must be a virtual guarantee that the torture will occur if the person is sent back to his or her country.
Unlike applications for refugee status, asylum, and withholding of removal, applications made under the Convention against Torture do not have to meet a "nexus requirement:" Convention against Torture applications do not have to show the reason for the torture, but they must still demonstrate that it is more likely than not that the torture will occur.
Because of the complexity and difficulty involved in applying for refugee status, asylum, withholding of removal, and for relief under the Convention against Torture, it is highly recommended that anyone who is applying to come to or stay in the United States using one or more of these applications use an experienced professional, to ensure the strongest possible application.
The materials appearing on this website are provided for informational use only, and are in no way intended to constitute legal advice or the opinions of this law firm or any of its attorneys. Transmission or receipt of any information from this website does not create an attorney-client relationship, and you should not act or rely upon any information appearing on this website without seeking the advice of an attorney. Moreover, because the law is constantly changing, the materials appearing on this website are not guaranteed to be correct, complete, or up-to-date.