Withholding of Removal and CAT Protection

What withholding of removal is

Section 241(b)(3) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1231(b)(3)(A), says the government "may not remove an alien to a country" if the alien's "life or freedom would be threatened in that country" because of race, religion, nationality, membership in a particular social group, or political opinion — the same five grounds as asylum. When the facts and the law are met, the protection is not optional: the regulation says the application "shall be granted" (8 C.F.R. § 1208.16(d)(1)), unless a bar applies.

Three related protections are requested together on Form I-589, Application for Asylum and for Withholding of Removal:

• Asylum (INA § 208) — a lower standard of proof, but discretionary and subject to a one-year filing deadline and more bars. Our asylum guide covers it.
• Withholding of removal (INA § 241(b)(3)) — a higher standard of proof, no one-year deadline, mandatory if proven, but it only blocks removal to one country.
• Protection under the Convention Against Torture — "withholding" or "deferral" of removal under 8 C.F.R. §§ 1208.16(c)–1208.18, for people more likely than not to be tortured, with or without a protected ground.

In removal proceedings the immigration judge may decide asylum and withholding "whether or not asylum is granted" (§ 1208.16(a)); in practice the judge reaches withholding and CAT when asylum is denied or barred. Withholding is decided almost always in immigration court — it is a defense to removal, not an application that leads to a status.

The legal test: "more likely than not"

The applicant carries the burden of showing that their "life or freedom would be threatened in the proposed country of removal" on account of a protected ground (8 C.F.R. § 1208.16(b)). The Supreme Court held in INS v. Stevic, 467 U.S. 407 (1984) that this requires a "clear probability" of persecution — that persecution is more likely than not — and in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) that asylum's "well-founded fear" is a more generous standard. A real but less-than-even chance of persecution can be enough for asylum and still fall short for withholding.

How the evidence is weighed

• Past persecution. If the applicant was persecuted in the past on a protected ground, the law presumes their life or freedom would be threatened again. The government can rebut that presumption by a preponderance of the evidence, by showing a fundamental change in circumstances or that the applicant could reasonably relocate within the country (§ 1208.16(b)(1)).
• Future threat without past persecution. The applicant must show it is more likely than not they would be persecuted; they need not show they would be singled out if there is a "pattern or practice" of persecuting a group they belong to and are identified with (§ 1208.16(b)(2)). Relocation within the country defeats the claim if it would be reasonable.
• Credibility and corroboration. Credible testimony "may be sufficient … without corroboration" (§ 1208.16(b)), but the statute applies the asylum rules on credibility and corroborating evidence to withholding too (8 U.S.C. § 1231(b)(3)(C), incorporating § 1158(b)(1)(B)(ii)–(iii)): the judge may require reasonably available corroboration and may weigh inconsistencies in every statement the applicant has made. In Matter of G-C-I-, 29 I&N Dec. 176 (BIA 2025) the Board held that a lack of corroboration can by itself defeat a withholding claim.
• Nexus — the "because of" link. The harm must be because of a protected ground. The Board of Immigration Appeals held in Matter of C-T-L-, 25 I&N Dec. 341 (BIA 2010) that the asylum "one central reason" test applies to withholding. The Ninth Circuit disagreed in Barajas-Romero v. Lynch, 846 F.3d 351 (9th Cir. 2017), holding that for withholding the ground need only be "a reason" — so in California, Arizona, Nevada, Oregon, Washington and the other Ninth Circuit states the test is easier to meet. Where you live decides which rule applies.

Most claims turn on the particular social group — see our particular social group page and our article on Matter of C-L-R-, where the Board in 2026 denied a withholding claim for lack of a particularized risk.

Protection under the Convention Against Torture

CAT protection comes from Article 3 of the United Nations Convention Against Torture, as implemented by the Foreign Affairs Reform and Restructuring Act of 1998 (8 C.F.R. § 1208.16(c)(1)). The applicant must prove "it is more likely than not that he or she would be tortured if removed to the proposed country of removal" (§ 1208.16(c)(2)). No protected ground is needed — a person targeted for money, revenge or any other reason can qualify, if the harm is torture and the government is involved.

What counts as torture

• Severe pain or suffering, physical or mental, intentionally inflicted for a purpose such as punishment, intimidation, coercion or discrimination (8 C.F.R. § 1208.18(a)(1)).
• Government involvement: inflicted "by, or at the instigation of, or with the consent or acquiescence of, a public official acting in an official capacity" (§ 1208.18(a)(1)). Acquiescence means the official was aware of the activity — by actual knowledge or "willful blindness" — and breached a legal duty to intervene (§ 1208.18(a)(7)). The Board has read this strictly: acquiescence is a different, harder test than asylum's "unable or unwilling to control" standard, and fear of private violence plus speculation that the police will not help is not enough (Matter of M-S-I-, 29 I&N Dec. 61 (BIA 2025)); where parts of the government are acting against gangs, even ineffectively, acquiescence was not shown (Matter of H-L-S-M-, 29 I&N Dec. 767 (BIA 2026)). A CAT claim against cartels or gangs needs specific evidence tying officials to the harm.
• Not torture: pain arising only from lawful sanctions, such as judicially imposed penalties, unless they defeat the purpose of the Convention (§ 1208.18(a)(3)).

The judge must consider all the evidence, including past torture, whether the person could relocate to a part of the country where torture is not likely, and "gross, flagrant or mass violations of human rights" there (§ 1208.16(c)(3)).

Withholding under CAT versus deferral

Anyone who proves the likelihood of torture "is entitled to protection" (§ 1208.16(c)(4)). If no bar applies, it is granted as withholding of removal under CAT. If a bar applies — even a serious crime or a security ground — the judge must instead grant deferral of removal to that country (8 C.F.R. § 1208.17(a)). Deferral is the one protection in immigration law with no bars at all, but it is weaker: it "does not confer … any lawful or permanent immigration status," does not necessarily mean release from ICE custody, lasts only until terminated, and DHS can ask the court to terminate it on new evidence at a hearing where the person again carries the burden of proof (§ 1208.17(b)–(d)). The Secretary of State may also obtain diplomatic assurances from a country that a person would not be tortured there (§ 1208.18(c)).

Withholding of removal versus asylum

• Standard of proof: asylum needs a well-founded fear (a reasonable possibility); withholding needs "more likely than not" (Cardoza-Fonseca; Stevic).
• Discretion: asylum can be denied as a matter of discretion even to an eligible person; withholding "shall be granted" if proven and no bar applies (§ 1208.16(d)(1)).
• Deadline: asylum must be filed within one year of arrival, with narrow exceptions (8 U.S.C. § 1158(a)(2)(B)); withholding and CAT have no filing deadline.
• Other asylum-only bars: a prior denied asylum application, firm resettlement in another country, and a safe-third-country agreement bar asylum (§ 1158(a)(2), (b)(2)(A)(vi)) but are not bars to withholding under § 1231(b)(3)(B).
• Crimes: for asylum, any aggravated felony is a particularly serious crime (§ 1158(b)(2)(B)(i)); for withholding, only an aggravated felony with an aggregate sentence of at least five years is automatically one (§ 1231(b)(3)(B)).
• Fees: in Matter of L-F-R-, 29 I&N Dec. 787 (BIA 2026) (July 24, 2026) the Board held that not paying the annual asylum fee can end the asylum application, but that the fee and its consequences do not reach withholding of removal or CAT.
• What you get: asylum leads to a green card, lets a spouse and children join, and allows travel with a refugee travel document; withholding gives none of those (see the last section of this guide).

Who is barred from withholding

Statutory withholding — and withholding under CAT, which shares the same bars (§ 1208.16(d)(2)) — is denied to a person who (8 U.S.C. § 1231(b)(3)(B)):

• "ordered, incited, assisted, or otherwise participated in the persecution" of others on a protected ground (the persecutor bar) — with no exception for someone who acted under duress (Matter of Negusie, 29 I&N Dec. 285 (A.G. 2025), making the 2020 Attorney General decision operative on October 22, 2025);
• was convicted by a final judgment of a particularly serious crime and is therefore a danger to the community;
• committed a serious nonpolitical crime outside the United States before arriving, where there are "serious reasons to believe" it — again with no duress exception (Matter of D-G-B-L-, 29 I&N Dec. 392 (BIA 2026));
• is a danger to the security of the United States — which includes anyone described in the terrorism deportation ground, § 1227(a)(4)(B); or
• is deportable for participating in Nazi persecution, genocide, torture or extrajudicial killing (§ 1227(a)(4)(D)).

The particularly serious crime bar

An aggravated felony (or felonies) with an aggregate sentence of at least five years is a particularly serious crime by statute, but the statute also lets the judge find that a crime with a shorter sentence is particularly serious (§ 1231(b)(3)(B)). In Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007), the Board held that the crime need not be an aggravated felony at all, and that the judge looks at the elements of the offense and, where they bring it within the range of a particularly serious crime, the facts and circumstances of the conviction. On January 30, 2026, in Matter of E-A-S-O-, 29 I&N Dec. 422 (BIA 2026), the Board confirmed that N-A-M- is the framework and held that there is no presumption that a single misdemeanor is not a particularly serious crime. Our crimes and immigration guide explains aggravated felonies and how convictions are analyzed.

If the evidence indicates that a bar may apply, the applicant must prove by a preponderance of the evidence that it does not (§ 1208.16(d)(2)(i)).

Public-health bars (in force since December 31, 2025)

A 2020 rule that took effect on December 31, 2025 (confirmed at 90 FR 61035 (Dec. 30, 2025)) treats a person as a danger to security — and so barred from withholding — if a communicable disease has triggered an ongoing public-health emergency declaration and the person has symptoms or recent contact, or if the Secretary and the Attorney General have jointly designated a country or region where such a disease is prevalent (§ 1208.16(d)(2)(ii)–(iii)). It applies only while such a declaration or designation is in effect. CAT deferral remains available.

When withholding is the only option: the one-year deadline and criminal records

Withholding matters most for people who cannot get asylum. The most common reasons:

• A missed one-year deadline. Asylum requires filing within one year of the last arrival, unless changed or extraordinary circumstances excuse the delay (§ 1158(a)(2)(B), (D)). Many people learn about asylum years after arriving. Withholding and CAT have no deadline and remain available, on the higher standard.
• A conviction. Any aggravated felony bars asylum, but a withholding applicant is barred automatically only by an aggravated felony with a sentence of five years or more; other convictions are judged case by case. A person barred from both can still seek CAT deferral.
• A prior removal order. A person who returned illegally after removal has the old order reinstated and "may not apply for any relief" (§ 1231(a)(5)) — asylum included — but can still seek withholding and CAT in the proceedings described next.

Because withholding and CAT are decided on the same I-589 as asylum, an application in court should present all three, so that if asylum fails on a deadline or a bar, the judge decides the other two on the same record.

Withholding-only proceedings

Some people are not placed in regular removal proceedings at all: those whose prior removal order is reinstated under § 1231(a)(5), and people convicted of an aggravated felony who received an administrative removal order under INA § 238(b). If they say they fear returning, the process is (8 C.F.R. § 241.8(e); § 208.31; § 1208.31):

1. Reasonable fear interview. An asylum officer interviews the person, normally within 10 days of the referral, to decide whether they have a reasonable fear of persecution or torture. The person may bring a lawyer at no expense to the government and present evidence (§ 208.31(b)–(c)).
2. If the officer finds no reasonable fear, the person may ask an immigration judge to review that finding. The review is de novo and, absent exceptional circumstances, takes place within 10 days of the referral; if the judge agrees with the officer, there is no appeal and DHS may remove the person (§ 1208.31(f)–(g)).
3. If fear is found (by the officer or the judge), the case goes to the immigration court on Form I-863 "for full consideration of the request for withholding of removal only" (§ 1208.31(e)). The judge's jurisdiction is limited to withholding and CAT — not asylum or other relief (8 C.F.R. § 1208.2(c)(2)). Either side may appeal to the Board of Immigration Appeals. The judge may not end these proceedings as a matter of discretion — the Board held that discretionary termination is prohibited (Matter of J-A-N-M-, 29 I&N Dec. 287 (BIA 2025)).

Detention. The Supreme Court held in Johnson v. Guzman Chavez, 594 U.S. 523 (2021) that people with reinstated orders who are in withholding-only proceedings are detained under § 1231, the post-order detention statute, and are not entitled to a bond hearing under § 1226. Our detention guide and bond hearings guide explain the difference.

Federal court review. In Riley v. Bondi, 606 U.S. 259 (2025), decided June 26, 2025, the Supreme Court held that an order denying CAT protection in withholding-only proceedings is not a "final order of removal," so the 30-day deadline to petition for review runs from the reinstated or administrative removal order — and that this deadline is a claim-processing rule, not a jurisdictional one. The timing is a trap; a petition for review should be planned from the start.

How a withholding case is decided in immigration court

1. The application. Form I-589 is filed with the immigration court, with a detailed declaration, identity documents, evidence of past harm, and country-conditions reports. In Matter of H-A-A-V-, 29 I&N Dec. 233 (BIA 2025) the Board held that a judge may pretermit asylum, withholding and CAT applications without a full hearing if the facts alleged do not establish prima facie eligibility — so every element must be in the written application.
2. The individual (merits) hearing. The applicant testifies under oath through a court interpreter, is cross-examined by the DHS attorney, and may present witnesses and expert testimony. The judge decides credibility, each element, and any bar.
3. The order. A grant of withholding comes with an order of removal: the Board held in Matter of I-S- & C-S-, 24 I&N Dec. 432 (BIA 2008) that a judge who grants withholding must first enter an explicit order of removal, because withholding only bars carrying it out to one country.
4. Appeal. Either side may appeal to the Board of Immigration Appeals; our BIA appeals guide covers the deadline and the process. After the Board, a petition for review goes to the federal court of appeals; the Supreme Court held in Nasrallah v. Barr, 590 U.S. 573 (2020) that the court may review the factual findings behind a CAT denial, deferentially, even for a person removable for a crime.

Withholding hearings are where a former judge's view of the record matters most: which facts the judge will need to see proven, where credibility is usually tested, and how the country evidence has to connect to the applicant's own risk. See our removal defense guide for the whole court case.

To have a former immigration judge prepare and present your own asylum, withholding or CAT case, see our asylum lawyer page. For the three protections side by side, see asylum vs. withholding vs. CAT.

What a withholding or CAT grant gives — and what it does not

What it gives

• Protection from removal to that country. A person granted withholding or deferral "may not be deported or removed" to the country for which it was granted unless the grant is terminated (8 C.F.R. § 1208.22).
• A work permit. A person granted withholding is authorized to work "for the period of time in that status," shown by an employment authorization document (8 C.F.R. § 274a.12(a)(10)) applied for on Form I-765. That category names withholding of removal; it does not name CAT deferral, so a person granted only deferral should get advice on whether and how they can be authorized to work.

What it does not give

• No green card and no path to citizenship. Withholding is not a status; there is no adjustment based on it. Deferral "does not confer upon the alien any lawful or permanent immigration status" (§ 1208.17(b)(1)(i)).
• No protection for family. Unlike asylum, there are no derivatives: a spouse or child must win their own case.
• No travel. The removal order stays in place. A person who leaves the United States while it is outstanding "shall be considered to have been … removed" (8 C.F.R. § 1241.7) and is then inadmissible for 10 years — 20 after a second removal, and permanently after an aggravated felony conviction (8 U.S.C. § 1182(a)(9)(A)(ii)).
• No protection against a third country. Nothing in the withholding or CAT rules prevents DHS "from removing an alien to a third country other than the country to which removal has been withheld or deferred" (§ 1208.16(f)); the statute's list of countries of removal is in 8 U.S.C. § 1231(b)(1)–(2). The Supreme Court put it plainly in Guzman Chavez: "withholding-only relief is country-specific," and the removal order "remains in full force." Whether DHS must first give notice and a chance to claim fear of the new country is in litigation. On June 23, 2025 the Supreme Court stayed a preliminary injunction that required those steps (DHS v. D.V.D., No. 24A1153). The district court later entered a final judgment for a class of people with final removal orders declaring that DHS must give effective notice and a meaningful opportunity to raise a fear claim before removal to a third country; on September 18, 2026 the First Circuit affirmed it except for two declarations about the order in which countries must be tried (No. 26-1212), and on September 24, 2026 the government asked the Supreme Court to stay that judgment (No. 26A406). On September 29, 2026 the Court granted the stay, so the class judgment is on hold, and also granted review (No. 26-426) of whether the district court had jurisdiction, whether 8 U.S.C. § 1252(f)(1) allowed classwide relief, and whether the government's third-country removal guidance is lawful; the case is set for argument on December 9, 2026, and the stay lasts until the Court decides. A person with withholding who receives notice of removal to another country should contact a lawyer immediately.
• Not permanent. DHS may move to reopen the case to terminate withholding by showing, by a preponderance of the evidence, a fundamental change in circumstances, fraud, or a later act that would have barred it (8 C.F.R. § 1208.24(b), (f)); deferral can be terminated through the simpler hearing in § 1208.17(d).

Because the removal order remains, a person with withholding should keep every document of the grant, attend every ICE check-in, and ask before any change — a new arrest, a trip, a marriage — whether it affects the case. Other relief may open later through family or a motion to reopen; a stay of removal is the emergency tool if removal is imminent. Our withholding of removal explainer sums up the essentials.

Carlos Maury, a former U.S. Immigration Judge, leads Carlos Maury Law; to talk about a withholding of removal or CAT case, call (213) 769-0050. We speak Spanish. You can find your court on our immigration courts page.