Asylum and Withholding of Removal

Law Resource Links, Maryland


U.S. Immigration laws protect persons who are fleeing persecution from foreign countries. It is important to know who is protected, how they are protected, and other benefits that flow from this protection.

1. Who is protected?
Refugees and Asylum seekers are protected. A refugee or an asylee is a person who is unable or unwilling to return to their country because they have a “well-founded” fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. An asylee seeks protection from within the United States, while a refugee seeks protection from outside the United States.

2. Affirmative and Defensive Asylum
An asylum application may be affirmative or defensive. An affirmative application is made to the United States Citizen and Immigration Office (USCIS), while a defensive application is made to the Executive Office for Immigration Review (EOIR) before an Immigration Judge during removal proceedings.

3. Affirmative Application Processing:
The applicant must be physically present in the U.S. or seeking entry to the U.S at a port of entry before being placed in removal proceedings. This application is filed with USCIS using Form I-589, Application for Asylum and Withholding of Removal. It must be filed within one year of the applicant’s last arrival, or it will be considered time-barred. Suppose the application is being filed after one year. In that case, the bar time may be overcome if the applicant can show changes that materially affect their eligibility or extraordinary circumstances that caused the delay. In addition to this, the applicant must file within a reasonable time after that.

4. Authorization to Work
If one year after the asylum application has been received by USCIS, and the applicant has not been interviewed. In that case, they will be eligible to apply for an employment authorization document to work in the United States pending the final adjudication of their asylum application.

5. Travel out of the United States
An applicant for asylum may apply for permission to travel out of the U.S. This permission is referred to as Advance Parole. If an applicant leaves the U.S. without obtaining permission, their application will be abandoned. It is imperative to know that if the applicant was out of status when they were applying for asylum, even if they are given Advance Parole, they may not be able to return to the United States if they leave. An applicant whose application for asylum is approved can apply for a Refugee Travel Document. This document will permit them to travel abroad and return to the United States.

6. Interview
Depending on where the applicant lives, they will be scheduled to appear for an Asylum Interview before an Asylum Interviewing Officer. This interview is very important because the Officer will obtain the applicant’s necessary information and documents to determine whether they have a credible asylum claim.

7. Approval and protection
When a refugee or asylee satisfies the legal requirements, they are granted legal status in the United States. Many applicants for asylum/refugee status can also apply simultaneously for Withholding of Removal. The asylee or refugee is authorized to work in the United States. It used to be that an asylee or a refugee always had to have an employment authorization document to work. However, the present state of the law is that as long as a refugee or asylee can prove their status, this is an authorization to work in the United States. U.S. government also provides some assistance to asylees and refugees to enable them to settle in the United States

Because many refugees escape from their countries, leaving their families behind, refugees are allowed to file a petition to have their children below the age of 21, and their spouses join them in the United States. This petition must be filed within 2 years of being granted refugee status.

8. Permanent Residency and Citizenship
An asylee or refugee can apply for permanent resident status one year after being granted asylee or refugee status. Then, four years after obtaining permanent resident status, they may apply for naturalization to become U.S. citizens (one year of the asylee’s residence before adjustment is counted toward the naturalization residency requirement, usually five years).

9 .Denial and Referral to the Immigration Court
If the asylum application is not approved, the Asylum Officer will issue a Form I-862, Notice to Appear, and forward the case to an Immigration Judge. This is not a denial but a referral. The Immigration Judge conducts a “de novo” (new) hearing independent of the decision made by the USCIS.

10. Defensive Asylum Processing
Defensive asylum applications are when a foreign national in removal proceedings request asylum as a defense against being removed from the United States. The applicant must be in removal proceedings before an Immigration Judge.
There are two ways that individuals are placed in removal proceedings:

They are referred to an Immigration Judge by USCIS after they have been determined to be ineligible for asylum at the end of the affirmative asylum process, or
They are placed in removal proceedings because they were apprehended in the United States without proper documentation, or they were caught trying to enter the United States without proper documentation, placed in an expedited removal process, and were found to have a credible fear of persecution or torture.


A foreign national in removal proceedings may be granted Withholding of Removal under US Immigration and Nationality Act (INA) or under United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”).

To be granted Withholding of Removal under the Act, the applicant must demonstrate that, if returned to their country, their life or freedom would be threatened on account of one of the protected grounds. The applicant must establish a “clear probability” of persecution and torture, meaning that it is “more likely than not” that they will be subject to persecution on account of a protected ground if returned to the country from which they seek withholding of removal.

According to CAT and its implementing regulations, no person may be removed to a country where it is “more likely than not” that such a person will be subject to torture. “Torture” is defined, in part, as the intentional infliction of severe pain or suffering by, or at the instigation of, or with the consent or acquiescence of a public official.