Asylum, Withholding of Removal, Convention Against Torture


Asylum is a form of protection available to people who meet the definition of a refugee and are either already in the United States or are seeking admission at a port of entry. A person may apply for asylum in the United States regardless of country of origin or current immigration status. Noncitizens can apply for asylum affirmatively with the United States Citizenship and Immigration Service (USCIS) or seek asylum as a form or relief from removal before an immigration judge.

Eligibility for Asylum

To be eligible, an applicant for asylum must show either past persecution or a well-founded fear of future persecution based on race, religion, nationality, political opinion, or membership in a particular social group. Furthermore, an asylum seeker must file his or her application within one year of arriving in the United States unless there are extraordinary circumstances or changed circumstances that prevented the applicant from filing their application. An asylum seeker must also meet certain evidentiary requirements under the REAL ID Act. It is important to note that each case is very fact dependent and asylum law is constantly evolving, so people who fear returning to their country should consult an immigration attorney as soon as possible. Courtney McDermed has extensive experience with asylum law.

Withholding of Removal and the Convention Against Torture

If an applicant does not meet the requirements for asylum, either because the application was filed late or the applicant has a conviction for particularly serious crime, withholding of removal under INA § 241(b)(3) or protection under the United Nations Convention Against Torture may still be viable forms of protection against returning to a country where the applicant fears persecution. However, to be eligible for withholding of removal under INA § 241(b)(3) an applicant needs to meet the more stringent “more likely than not” standard rather than the well founded fear standard. To qualify for protection under the United Nations Convention Against Torture, an applicant must establish it is more likely than not that he or she will be tortured by or with the acquiescence of the government.

Application for Permanent Residence

If a person has already been granted asylum in the United States, then he or she may be eligible to apply for lawful permanent residence (“green card”) and petition for family members to immigrate. We recognize that each case is unique and recommend that all persons consult with an experienced attorney about their immigration case.
This is the duty of our generation as we enter the 21st century—solidarity with the weak, the persecuted, the lonely, the sick, and those in despair. -Elie Wiesel