ALTERNATIVES TO ASYLUM
If an applicant cannot get asylum, there may be other ways for the person to stay in the United States if the individual fears harm upon returning. The applicant should ask a lawyer about “Withholding of Removal” and “The Convention Against Torture.” These other options may allow an applicant to stay in the U.S. legally and get a work permit. The applicant will not get all of the benefits of asylum, but both are potential options if the person does not qualify for asylum.
Withholding of Removal1
Withholding of removal is an alternative form of relief that might be available to someone facing persecution in his or her home country.2 In order to be granted withholding of removal, an applicant must meet a higher standard than for asylum. Courts have held that the applicant must show that there is at least a 51% likelihood of suffering future persecution in the applicant's country of origin, as compared to a likelihood of at least 10% in asylum cases.3 It can only be granted by an Immigration Judge, not by an Asylum Officer.
It is common practice for applicants to file for asylum and withholding of removal, both of which can be done with the I-589 form. Unlike asylum, withholding of removal is not subject to a one-year filing deadline and may be available for applicants who have been convicted of an aggravated felony. Further, granting withholding of removal is mandatory if the applicant can show a well-founded probability of facing persecution in that person's home country.4
An applicant who has won withholding does not receive as many benefits as an applicant who was granted asylum. The individual can seek work authorization, but will not be able adjust citizen status to become a legal permanent resident, nor become a citizen. Additionally, a winner of withholding can never travel internationally, and does not have the ability to petition for derivative status for immediate relatives.
Examples of Cases Under Withholding of Removal
• Molathwa v. Ashcroft, the Eighth Circuit found that there was not enough evidence demonstrating that Molathwa, a gay man from Botswana, would more likely than not be subject to persecution if returned to Botswana. Molathwa had missed the one-year filing deadline, and the Court determined that an incident where the police entered Molathwa's apartment without a warrant, the beating of a friend by relatives on the basis of his sexual orientation, and the incarceration of a gay man for two days who was caught engaging in sexual activity with another man did not amount to a pattern of harassment.5
• In the Matter of Toboso-Alfonso, a gay Cuban man who had been forced to report regularly to the government and had been forced to attend a labor camp, did meet the heightened standard for withholding.6
The Convention Against Torture7
Relief under the Convention Against Torture (CAT) is the third form of relief an individual fearing persecution can seek. An applicant bears the burden of demonstrating that torture is more likely than not if the applicant is removed to the country of origin. The Board of Immigration Appeals has found that torture “must be an extreme form of cruel and inhuman punishment” that “must cause severe pain or suffering.”8 There are no bars to eligibility for relief under CAT. Therefore, since the treaty itself does not contain any bars to its mandate of non-return, aggravated felons can make claims for relief if they fear torture. Additionally, an applicant is not required to establish that her fear of torture is on account of membership in a particular social group. However, the United Nations Committee Against Torture has consistently held that the existence of a consistent pattern of gross, flagrant, or mass violations of human rights in a particular country does not, as such, constitute sufficient grounds for determining that a particular person would be in danger of being subjected to torture upon return to that country.
Immigration regulations create two separate types of protection under CAT.9 The first type of protection is a new form of withholding of removal under CAT. Withholding under CAT prohibits the return of an individual to that person's home country. It can only be terminated if the individual’s case is reopened and DHS establishes that the individual is no longer likely to be tortured in his or her home country. The second type of protection is called deferral of removal under CAT. Deferral of removal under CAT is a more temporary form of relief. Deferral of removal under CAT is appropriate for individuals who would likely be subject to torture, but who are ineligible for withholding of removal. It can be terminated more quickly and easily than withholding of removal if the individual is no longer likely to be tortured if forced to return to his or her home country. Additionally, an individual granted deferral of removal under CAT may be detained by the DHS if an individual is deemed to be a threat to the community.
Examples of Cases Under CAT
• Lawrence Eneh, a parolee from Nigeria, was convicted of a federal offense, sentenced to 36 months imprisonment, and placed in removal proceedings. Eneh testified that he would be imprisoned upon return and intentionally deprived of necessary medications while in prison as a form of punishment for having AIDS. In Eneh v. Holder, the sole issue on appeal to the Ninth Circuit was whether the BIA erred in denying Eneh deferral of removal under CAT. The Ninth Circuit vacated and remanded the BIA’s decision, stating that both the Immigration Judge and the BIA had failed to acknowledge and analyze testimony and documentary evidence that Eneh would be individually and intentionally targeted for mistreatment because of his HIV status and associated medical problems.10
• In Reyes-Reyes v. Ashcroft, the Ninth Circuit ruled that the term “government acquiescence” was broad enough to include the government’s failure to address severe physical abuse inflicted by non-government actors. The case involved a transgender woman who was kidnapped, severely beaten, and raped by a group of men. In addition, she was also threatened by her abusers and feared retaliation if she reported the crimes.11
Temporary Protected Status and Deferred Enforced Departure
Temporary Protected Status (TPS) may be granted to people who originate from countries that the DHS has designated as having “ongoing armed conflict, an environmental disaster, or other extraordinary and temporary conditions.”12
TPS is designated for specific and limited periods of time. Individuals who benefit from TPS protection may remain and work in the United States during this time, but may not apply for permanent residence. At the end of the designated period, their immigration status reverts to the same status they held before receiving TPS. As of May 2012, the countries granted TPS are El Salvador, Haiti, Honduras, Nicaragua, Somalia, Sudan, South Sudan, and Syria.
Deferred Enforced Departure (DED) is a temporary and discretionary administrative stay of removal granted by Presidential order to individuals from designated countries.13 This rarely-used form of protection allows individuals to remain in the United States and to obtain work permits. Liberian nationals have been granted DED from October 1, 2007, through March 31, 2013.
To qualify for withholding, an applicant must show that life or freedom would be threatened in the country of proposed removal because of race, religion, nationality, membership in a particular social group, or political opinion. INA § 241(b)(3); 8 U.S.C. § 1101(b)(3). ↩
Immigration and Naturalization Service v. Cardoza-Fonseca, 480 U.S. 421 (1987). ↩
Immigration and Naturalization Service v. Stevic, 467 U.S. 407 (1984). ↩
Molathwa v. Ashcroft, 390 F.3d 551 (8th Cir. 2004). ↩
Matter of Toboso-Alfonso, 20 I. & N. Dec. 819 (BIA 1990). ↩
Matter of J-E-, 23 I. & N. Dec. 291 (BIA 2002). ↩
8 C.F.R. §§ 208.16, 208.17. ↩
Eneh v. Holder, 601 F.3d 943 (9th Cir. 2010). ↩
Reyes-Reyes v. Ashcroft, 384 F.3d 782 (9th Cir. 2004). ↩
Department of Homeland Security, US Citizenship and Immigration Services, Temporary Protected Status & Deferred Enforced Departure, 2011, Last visited August 1, 2012. ↩