Protection if you fear torture when sent back

This page is general information, not legal advice. These cases are hard to win without help. Free and low cost legal help is listed below. If you fear going back, you are right to take that fear seriously, and the law gives you a way to say so.

What are the two other kinds of protection?

Withholding of removal is in the immigration law itself. The government may not send you to a country if your life or freedom would be threatened there because of your race, religion, nationality, membership in a particular social group, or political opinion (8 USC 1231(b)(3)). These are the same five reasons as asylum.

Convention Against Torture (CAT) protection comes from an international treaty the United States signed. It protects you from being sent to a country where you are more likely than not to be tortured (8 CFR 1208.16(c)). You do not need one of the five reasons. It comes in two forms: withholding under CAT, and deferral under CAT for people who are barred from the others (8 CFR 1208.17).

How is withholding different from asylum?

Sources: 8 USC 1158, 8 USC 1159, 8 USC 1231(b)(3), 8 CFR 1208.16 and 1208.17.

The hard truth: withholding and CAT protect you from one country. They do not give you a permanent status. You keep a removal order, and the protection only says you cannot be sent to that country. The government may still send you to a different country that agrees to take you and where you are not likely to be harmed (8 CFR 1208.17(b)(2)).

Which protection fits me?

• You can still apply for asylum (within the year, or with an exception): ask for all three. Asylum gives the most.
• You missed the 1 year deadline and no exception applies: withholding and CAT are still open. The deadline does not apply to them (8 USC 1158(a)(2)(B)).
• You have a conviction that bars asylum: withholding may still be open unless the crime is particularly serious. An aggravated felony with a total sentence of 5 years or more always bars withholding (8 USC 1231(b)(3)(B)).
• You are barred from both (for example by a particularly serious crime): CAT deferral has no crime bar. It is the protection of last resort.

What counts as torture?

Under the rules, torture is severe pain or suffering, physical or mental, done on purpose, for reasons such as punishment, getting information, scaring you, or discrimination (8 CFR 1208.18(a)). Two points matter most:

• It must be extreme. Harsh treatment that does not reach torture does not count.
• A public official must be involved. The official does it, orders it, agrees to it, or knows about it ahead of time and does nothing to stop it. "Knows" includes an official who chooses not to find out (the rule calls this willful blindness). This is how people harmed by gangs or cartels can qualify: if police or officials work with the gang or look away on purpose.

The judge looks at all the evidence, including past torture, whether you could safely live in another part of the country, and human rights conditions there (8 CFR 1208.16(c)(3)).

How do I ask for it?

1. Use Form I-589. Check the box asking to be considered for withholding under the Convention Against Torture. An asylum application costs $100 plus $105 for each year it stays open, and neither fee can be waived (8 CFR 106.2(c)). The immigration court's fee memo does not say whether they apply if you ask only for withholding and CAT, so ask your lawyer.
2. File it in immigration court if you are in removal proceedings. The immigration judge decides withholding and CAT (8 CFR 1208.16(a)).
3. Build your evidence. Your own detailed statement, proof of past harm (medical records, photos, police reports, threats), statements from witnesses, and reports about your country.
4. Go to every hearing. Missing a hearing can lead to a removal order without you (8 USC 1229a(b)(5)). Keep your address updated with the court on Form EOIR-33 within 5 working days of a move.
5. Testify. You will tell the judge what happened and what you fear. Practice with your lawyer. Small details and dates matter.

What if I was deported before?

If you have an old removal order and came back, ICE may "reinstate" it. You usually cannot get asylum then, but you can still ask for withholding or CAT. If you tell an officer you are afraid, you are sent to an asylum officer for a reasonable fear interview, usually within 10 days (8 CFR 208.31). You may bring a lawyer or accredited representative. If the officer finds a reasonable fear, a judge hears your case for withholding and CAT.

What happens if I win?

• You can stay and work. People granted withholding can get a work permit (8 CFR 274a.12(a)(10)). Ask your lawyer which category and fee apply to you.
• You may have to check in with ICE. Many people with withholding or deferral report to ICE on a schedule. Go to every check in. See ICE check ins and ankle monitors.
• CAT deferral can be reviewed. The government can ask the court to end deferral if conditions change (8 CFR 1208.17(d)). Deferral does not guarantee release if you are detained.
• Leaving the US ends your protection in practice. Do not travel.
• Your family needs their own cases. Withholding and CAT do not cover a spouse or children.

What mistakes should I avoid?

• Skipping withholding and CAT because asylum seems closed. Ask for everything that may apply.
• Leaving out past harm because it is painful. The judge can only weigh what you share. Tell your lawyer first, at your own pace.
• Changing your story. Differences between your interview, form and testimony can hurt credibility. Correct mistakes early, with your lawyer.
• Paying someone who promises a win. No one can promise this. Only lawyers and DOJ accredited representatives can give legal advice (EOIR).

Who can help?

Bay Area help (San Mateo and Santa Clara counties):

• CLSEPA: asylum and deportation defense for low income residents of San Mateo and Santa Clara counties. (650) 326-6440. Walk in Monday to Friday, 9 a.m. to 1 p.m. (CLSEPA).
• Catholic Charities San Francisco, San Mateo and Marin: asylum and court help. (650) 285-6451 (Catholic Charities SF).
• Asian Law Alliance (San Jose): (408) 287-9710 (Asian Law Alliance).

Anywhere in the United States:

• EOIR free legal service providers list, by immigration court
• More on Free legal help in the Bay Area and Free lawyers for adults in immigration court

Contact them to confirm hours, languages and openings. Being listed here is not a referral or a promise of service.

Questions people ask

The gang, not the government, threatened me. Can I get CAT? Possibly, if officials took part, agreed, or knew and chose not to act. Evidence about police ties to the gang in your area matters.

Can I get a green card later through withholding? Not through withholding itself. Some people later qualify another way, such as through a family member. Ask a lawyer.

If I win withholding, can ICE still deport me? Not to the country you were protected from. They could try to send you to a third country where you are not likely to be harmed.

My asylum was denied but I won withholding. Should I appeal? Maybe. Asylum gives more. The appeal deadline is short, so talk to your lawyer right away. See Immigration court.

Is there a fee to ask only for withholding and CAT? The asylum fees ($100, then $105 a year) apply to asylum applications. The immigration court's fee memo lists the fee for "Asylum (Form I-589)" and does not say whether it applies when you ask only for withholding and CAT (EOIR PM 25-36). Ask your lawyer before you file.

Is there a checklist I can print?

Yes. Use it to gather evidence with your lawyer.