Protection from persecution
Asylum vs. withholding of removal vs. CAT protection
Asylum, withholding of removal and protection under the Convention Against Torture all keep a person from being sent back to danger, but they have different tests, deadlines, bars and results. This guide puts the three side by side.
Three protections, one application
People who fear harm in their home country often hear three terms used together: asylum, withholding of removal and protection under the Convention Against Torture (CAT). They are separate forms of protection, each with its own legal source:
- Asylum comes from section 208 of the Immigration and Nationality Act (INA), 8 U.S.C. § 1158. It is for people who are refugees: unable or unwilling to return home 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.
- Withholding of removal comes from INA § 241(b)(3), 8 U.S.C. § 1231(b)(3). It bars the government from removing a person to a country where their "life or freedom would be threatened" because of one of the same five grounds.
- CAT protection comes from Article 3 of the United Nations Convention Against Torture, carried out through regulations at 8 C.F.R. §§ 1208.16(c) to 1208.18. It protects a person who would likely be tortured, whatever the reason.
All three are requested on the same form, Form I-589, Application for Asylum and for Withholding of Removal. In immigration court the judge can decide asylum and withholding together, and when asylum is denied or barred, the judge goes on to decide withholding and CAT on the same record. That is why a well-prepared application in court usually presents all three. Our asylum guide and withholding of removal guide cover each protection in more depth.
The legal test: how much risk must be shown
The biggest difference between the three is how likely the harm must be.
- Asylum: a well-founded fear. The applicant must show a genuine fear that is objectively reasonable, meaning a reasonable possibility of persecution. The Supreme Court held in INS v. Cardoza-Fonseca (1987) that this is a lower standard than "more likely than not." The protected ground must be at least one central reason for the persecution (8 U.S.C. § 1158(b)(1)(B)(i)).
- Withholding of removal: more likely than not. The applicant must show it is more likely than not that they would be persecuted on a protected ground in the country of removal (8 C.F.R. § 1208.16(b)). The Supreme Court described this in INS v. Stevic (1984) as a "clear probability." A real but less-than-even chance can be enough for asylum and still fall short for withholding.
- CAT: more likely than not, of torture. The applicant must show it is more likely than not that they would be tortured if removed (8 C.F.R. § 1208.16(c)(2)). Torture means severe pain or suffering, physical or mental, intentionally inflicted "by, or at the instigation of, or with the consent or acquiescence of, a public official acting in an official capacity" (8 C.F.R. § 1208.18(a)(1)). Acquiescence means the official knew of the activity, or was willfully blind to it, and failed to act on a legal duty to stop it. No protected ground is needed: someone targeted for money or revenge can qualify, if the harm is torture and a public official is involved.
For asylum and withholding, a person who proves past persecution on a protected ground is presumed to face a future threat, and the government can try to rebut that presumption, for example by showing a fundamental change in circumstances or that the person could reasonably relocate within the country.
Side by side
| Question | Asylum | Withholding of removal | CAT protection |
|---|---|---|---|
| Legal basis | INA § 208, 8 U.S.C. § 1158 | INA § 241(b)(3), 8 U.S.C. § 1231(b)(3) | 8 C.F.R. §§ 1208.16(c)–1208.18 |
| Standard of proof | Well-founded fear (reasonable possibility) | More likely than not | More likely than not |
| Harm required | Persecution on one of five protected grounds | Threat to life or freedom on one of five protected grounds | Torture by or with the acquiescence of a public official; no protected ground needed |
| Filing deadline | One year from arrival, with exceptions | None | None |
| Discretion | Discretionary: may be denied even if eligible | Must be granted if proven and no bar applies | Must be granted if proven |
| Bars | The most bars, including any aggravated felony | Persecutor, particularly serious crime, serious nonpolitical crime, security | CAT withholding: same bars as withholding. CAT deferral: no bars |
| Green card | Yes, after one year as an asylee | No | No |
| Spouse and children | Can be included as derivatives | Not included | Not included |
| Travel abroad | Possible with prior permission | No: the removal order stays | No: the removal order stays |
| Removal to a third country | Protected from removal | Possible | Possible |
The one-year deadline and the bars
The one-year deadline applies only to asylum. An applicant must show by clear and convincing evidence that the application was filed within one year after arriving in the United States (8 U.S.C. § 1158(a)(2)(B)). A late application can still be considered if the person shows changed circumstances that materially affect eligibility, or extraordinary circumstances related to the delay, and then files within a reasonable period (§ 1158(a)(2)(D)). Examples in the regulations include changed conditions in the home country, serious illness or disability during the first year, and having held lawful status or Temporary Protected Status until shortly before filing. The deadline does not apply to unaccompanied children (§ 1158(a)(2)(E)). Withholding and CAT have no filing deadline, which is why they are the usual fallback for someone who learned about asylum too late.
Bars. Asylum and withholding share several bars: a person who ordered, incited, assisted or otherwise participated in persecuting others (the persecutor bar); a person convicted of a particularly serious crime; a person who committed a serious nonpolitical crime abroad before arriving; and a danger to U.S. security, including the terrorism grounds. Asylum has more:
- For asylum, any aggravated felony counts as a particularly serious crime (8 U.S.C. § 1158(b)(2)(B)(i)). For withholding, an aggravated felony with an aggregate sentence of at least five years is automatically one, and other crimes are judged case by case (8 U.S.C. § 1231(b)(3)(B)).
- Firm resettlement in another country, a safe-third-country agreement, and a previous asylum denial bar asylum but are not among the statutory bars to withholding.
CAT deferral has no bars. CAT withholding has the same bars as statutory withholding. But a person who proves torture is more likely than not and is barred from every other protection must still be granted deferral of removal to that country (8 C.F.R. § 1208.17(a)). Deferral is the narrowest protection: it gives no lawful status, can be ended through a simpler procedure, and does not by itself mean release from detention.
What each protection gives, and what it does not
Asylum is the broadest. A person granted asylum may not be removed to their country, is authorized to work, and may travel abroad with prior permission, usually with a refugee travel document (8 U.S.C. § 1158(c)(1)). A spouse and unmarried children under 21 can receive the same status if they are accompanying or following to join (§ 1158(b)(3)). After one year of physical presence in the United States as an asylee, the person can apply for a green card (8 U.S.C. § 1159(b)), and later for citizenship.
Withholding of removal and CAT protection are much narrower:
- They protect only against removal to the country where the threat was proven. The judge enters a removal order and then withholds it as to that country, so the order stays in place.
- They are not an immigration status and give no green card and no path to citizenship.
- They have no derivatives. Each family member must win their own case or find another form of relief.
- They allow no travel. Leaving the United States while a removal order is outstanding counts as being removed and can bar return for years.
- They do not stop removal to a different country. The regulations say nothing in them prevents removal to a third country other than the one for which protection was granted (8 C.F.R. § 1208.16(f)).
- A person granted withholding of removal is authorized to work while the grant lasts, with an employment authorization document applied for on Form I-765 (8 C.F.R. § 274a.12(a)(10)). That category does not name CAT deferral, so a person granted only deferral should get advice about work authorization.
How the three are decided in immigration court
Most of these cases are decided by an immigration judge. A person in removal proceedings files Form I-589 with the immigration court, together with a detailed declaration, identity documents, evidence of the harm, and country-conditions reports tied to their own risk. At the individual (merits) hearing the applicant testifies under oath through an interpreter and is cross-examined by the Department of Homeland Security attorney. The judge decides credibility, each element of each protection, and any bar. A judge may deny an application without a full hearing if the written facts do not show eligibility, so every element of all three protections should appear in the application from the start.
Because asylum is the only one of the three that leads to a green card and protects the family, it is usually the first goal. Withholding and CAT matter most when asylum is out of reach because of the one-year deadline, a conviction, or a prior removal order. Presenting all three together means that if asylum fails on a deadline or a bar, the judge still decides the others on the same evidence.
Where to go next
Which protection fits depends on the facts: when the person arrived, what happened to them and why, who caused the harm, and any criminal or immigration history. If you are preparing an asylum application or already have a court date, see our asylum lawyer page. If you are in removal proceedings, our deportation defense page explains the court case as a whole. If a judge has already denied asylum, withholding or CAT, the deadline to appeal to the Board of Immigration Appeals is short; see our immigration appeals page. The official text of each rule is linked below.
Frequently asked questions
Can I apply for asylum, withholding of removal and CAT protection at the same time?
Yes. All three are requested on the same Form I-589, Application for Asylum and for Withholding of Removal. In immigration court the judge considers asylum first and, if asylum is denied or barred, decides withholding and CAT on the same record.
Which is easier to win: asylum or withholding of removal?
Asylum has the lower standard of proof, a well-founded fear, which can be met with less than a 50 percent chance of persecution. Withholding requires showing persecution is more likely than not. But asylum has a one-year deadline, more bars and is discretionary, so for some people withholding or CAT is the only protection available.
Do I need a protected ground such as religion or political opinion for CAT protection?
No. CAT protection does not require any of the five protected grounds. It requires showing that torture is more likely than not and that it would be inflicted by, at the instigation of, or with the consent or acquiescence of a public official acting in an official capacity.
If I missed the one-year asylum deadline, what is left?
The deadline can be excused for changed circumstances that materially affect eligibility or extraordinary circumstances related to the delay, if you then file within a reasonable time. If no exception applies, withholding of removal and CAT protection have no deadline and remain available, on the higher more-likely-than-not standard.
Can someone with a serious criminal conviction still get protection?
Possibly, depending on the conviction. Any aggravated felony bars asylum. For withholding, an aggravated felony with a total sentence of five years or more is automatically a particularly serious crime, and other crimes are judged individually. CAT deferral of removal has no criminal bars, though it gives no status and can be terminated more easily.
Can ICE send me to another country if I win withholding or CAT?
The regulations allow it. Withholding and CAT protection block removal only to the country where the danger was proven, and they do not prevent removal to a third country. Anyone told they will be sent to a different country should get legal help right away.
Official sources
- 8 U.S.C. § 1158 — Asylum (govinfo.gov)
- 8 U.S.C. § 1159 — Adjustment of status of refugees and asylees (govinfo.gov)
- 8 U.S.C. § 1231 — Detention and removal; withholding at (b)(3) (govinfo.gov)
- 8 C.F.R. § 1208.16 — Withholding of removal and CAT withholding (eCFR)
- 8 C.F.R. § 1208.17 — Deferral of removal under CAT (eCFR)
- 8 C.F.R. § 1208.18 — Definition of torture (eCFR)
- USCIS — Asylum (Form I-589, one-year filing)