President Reagan described the U.S. as a “shining city on a hill,” a beacon of freedom from the persecution that is so endemic in many other parts of the world.  Asylum is available to qualifying aliens who come to the U.S. with a well-founded fear of persecution should they ever return to their home countries.  In other cases, withholding of removal (WOR) may be available.


Aliens seeking asylum must demonstrate a well-founded fear of persecution on account of: (1) race, (2) religion, (3) nationality, (4) membership in a particular social group, or (5) political opinion.[1]  The law considers such people “refugees.”[2]  The law presumes that aliens who can show past persecution for one or more of these reasons have a well-founded fear of future persecution in their home countries.[3]  In order to rebut this presumption, ICE must show that either: (1) circumstances in the alien’s country have changed so fundamentally as to eliminate that fear or (2) the alien can avoid future persecution by relocating to a different part of the country.

To satisfy the “well-founded fear” standard, the alien only needs to show that future persecution is a “reasonable possibility.”[4]  The U.S. Supreme Court has held that “a 10% chance of being shot, tortured or otherwise persecuted is enough to show a well-founded fear of persecution.”[5]

An alien seeking asylum should apply within one year of entering the U.S.[6]  The only exceptions are in cases where either: (1) conditions have changed in the alien’s country that materially affect eligibility for asylum or (2) extraordinary circumstances delayed the alien’s timely application.[7]  Even aliens who enter the U.S. without inspection may apply for asylum.  However, they must provide clear and convincing evidence of when they entered.[8]

The affirmative asylum application process begins with the alien filing an I-589 Application for Asylum and Withholding of Removal with CIS.  CIS then schedules an interview with an Asylum Officer (AO) at one of its asylum offices.  Following the interview, the AO either: (1) grants the application; (2) denies the application, or (3) refers the application to the Immigration Court (IC).

When the AO grants an application, the alien may apply for and receive an I-94 card confirming refugee status.  The asylee may then apply for lawful permanent residence one year later.

When the AO refers an application to the IC, ICE issues a Notice to Appear (NTA) commencing proceedings in the IC.  The alien must then prepare and present the case to an IJ, who either grants or denies the application.

When an AO or IJ grants an asylum application, the alien may file an I-730 Refugee/Asylee Relative Petition with CIS.  This enables the alien’s spouse and children, living abroad, to enter the U.S. as refugees.

An alien placed in removal proceedings may plead asylum as a form of relief from removal.  This a called a “defense” application for asylum.  In such cases, it is frequently difficult to prevail due to the one-year rule.

Withholding of removal (WOR)

Aliens ineligible for asylum might still qualify for WOR.  Unlike asylum, WOR is not a basis for adjustment of status.  However it does protect aliens from being forcibly returned to their home countries.  Moreover, aliens who receive WOR are authorized to work during the duration of their stay in the U.S.  As with asylum cases, aliens requesting WOR may apply for it affirmatively with CIS or defensively with the IC.  There are two ways for an alien to receive WOR: (1) INA 241(b)(3) and (2) Convention Against Torture.

Under INA 241(b)(3), an alien may receive WOR by showing a threat to life or freedom on account of (1) race, (2) religion, (3) nationality, (4) membership in a particular social group, or (5) political opinion.[9]  When the alien shows that such a threat existed in the past, there is a rebuttable presumption that a future threat also exists,[10] which qualifies the alien for WOR.  To rebut this presumption, the AO or IJ must find by a preponderance of the evidence that either (1) country conditions have fundamentally changed,[11] or (2) the alien could safely live elsewhere in the country.[12]

In cases where no past threats occurred, aliens must show it is more likely than not that they will be persecuted on one of the five protected grounds.[13]  This is a much higher burden than that for asylum.

In 1994, the U.S. ratified the Convention Against Torture (CAT).  Honoring its obligations as a party to CAT, the U.S. has made WOR available to aliens facing torture if removed to their home countries.  For aliens requesting CAT-based WOR, the burden of proof is high.  They must show that if returned to their home countries, they will more likely than not be tortured.[14]

[1] INA 208(b)(1)(B)(i).

[2] INA 208(b)(1) and 101(a)(42)(A).

[3] 8 CFR 208.13(b)(1).

[4] INS v. Cardoza-Fonseca, 480 U.S. 421, 440, 107 S. Ct. 1207, 94 L. Ed. 2d 434 (1987).

[5] Id.

[6] INA 208(a)(2)(B).

[7] INA 208(a)(2)(D).

[8] INA 208(a)(2)(B).

[9] 8 CFR 208.16(b).

[10] 8 CFR 208.16(b)(1).

[11] 8 CFR 208.16(b)(1)(A).

[12] 8 CFR 208.16(b)(1)(B).

[13] 8 CFR 208.16(b)(2).

[14] 8 CFR 208.16(c)(2).

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