Asylum is the protection granted to foreign nationals who feel they cannot return to their native country. Seeking asylum is often confused with requesting refugee status, however, one main difference is that an individual who is requesting asylum is already in the country at the time of their request. 

The two ways of obtaining asylum in the United States are through the affirmative process and defensive process. In most cases, asylum is requested because an individual feels they would be in some form of mortal danger if they were to return to their country. Common reasons individuals seek asylum in the U.S. are fear of being killed by their own government, or persecuted due to their race, social status, personal, political or religious beliefs. Also, when an individual is placed in deportation proceedings he or she can file for Asylum or Withholdings of Removal as a defense to removal.

Withholding of Removal is a special type of order issued by an immigration judge to a person who demonstrates more than a 50% chance that they will be persecuted in their home country on account of their race, religion, nationality, membership in a particular social group, or political opinion.

To qualify for withholding of removal under section 241(b)(3) of the Act, the respondent’s facts must show a clear probability that his life or freedom would be threatened in the country directed for deportation on account of race, religion, nationality, membership in a particular social group or political opinion. So, the grounds for withholding of removal are the same as for asylum.

An alien convicted of an "aggravated felony" for which the person has been sentenced to an aggregate term of imprionsment of five (5) years is presumed to have committed a "particularly serious crime" and is ineligible for Withholding of Removal. This means that aliens who are ineligible for Withholding of Removal may include certain criminals, terrorists, or persecutors.

The applicant for withholding of removal under the Convention Against Torture bears the burden of proving that it is “more likely than not” that he or she would be tortured, as defined in the regulations, if removed to the proposed country of removal. 8 C.F.R. § 1208.16(c)(2). The torture must be inflicted “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1). “Acquiescence” requires that the public official have prior awareness of the activity and “thereafter breach his or her legal responsibility to intervene to prevent such activity.” 8 C.F.R. § 1208.18(a)(7).

For the purpose of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.