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Asylum, Withholding of Removal and Protection Under CAT


The heart of United States asylum law is the protection of refugees fleeing persecution.

Under 8 U.S.C. § 1158(b)(1), the Attorney General may grant asylum to any applicant who qualifies as a "refugee."

The Immigration and Nationality Act ("INA") defines a "refugee" as 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. See INS v. Cardoza-Fonseca, 480 U.S. 421, 428 (1987).

"The applicant may qualify as a refugee either because he or she has suffered past persecution or because he or she has a well-founded fear of future persecution." 8 C.F.R. § 1208.13(b).

More specifically, the applicant can show past persecution on account of a protected ground. Once past persecution is demonstrated, then fear of future persecution is presumed, and the burden shifts to the government to show, by a preponderance of the evidence, that there has been a fundamental change in circumstances such that the applicant no longer has a well founded fear of persecution, or [t]he applicant could avoid future persecution by relocating to another part of the applicant's country. An applicant may also qualify for asylum by actually showing a well founded fear of future persecution, again on account of a protected ground. See Deloso v. Ashcroft, 393 F.3d 858, 863-64 (9th Cir. 2005)..


In order to qualify for withholding of removal, an applicant must show that her "life or freedom would be threatened" if she is returned to her homeland, on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1231(b)(3); 8 C.F.R. § 1208.16(b).

The agent of persecution must be "the government or . . . persons or organizations which the government is unable or unwilling to control." See Reyes-Reyes v. Ashcroft, 384 F.3d 782, 788 (9th Cir. 2004).

"To qualify for withholding of removal, an alien must demonstrate that it is more likely than not that he would be subject to persecution on one of the specified grounds." See Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001).

"This clear probability standard for withholding of removal is more stringent than the well-founded fear standard governing asylum." See Al-Harbi, 242 F.3d at 888-89 (internal quotation marks and citation omitted).

An applicant who fails to satisfy the lower standard of proof for asylum necessarily fails to satisfy the more stringent standard for withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).

However, if asylum is denied in the exercise of discretion, the applicant remains eligible for withholding. See Huang v. INS, 436 F.3d 89, 95 (9th Cir. 2006).

"Unlike asylum, withholding of removal is not discretionary. The Attorney General is not permitted to deport an alien to a country where his life or freedom would be threatened on account of one of the [] protected grounds . . . ." See Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001)


Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment absolutely prohibits states from returning anyone to another state where he or she may be tortured. See AlSaher v. INS, 268 F.3d 1143, 1146 (9th Cir. 2001)

Article 3 provides that a signatory nation will not expel, return . . . or extradite a person to another country where there are substantial grounds for believing that he would be in danger of being subjected to torture.

The United States signed the Convention Against Torture on April 18, 1988, and Congress passed the Foreign Affairs Reform and Restructuring Act ("FARRA") in 1988 to implement Article 3 of CAT.

There are two forms of protection under the Convention Against Torture: (1) withholding of removal under 8 C.F.R. § 1208.16(c) for aliens who are not barred from eligibility under FARRA for having been convicted of a "particularly serious crime" or of an aggravated felony for which the term of imprisonment is at least five years, and (2) deferral of removal under 8 C.F.R. § 1208.17(a) for aliens entitled to protection but subject to mandatory denial of withholding.

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