Asylum, Withholding of Removal, and Relief Under the Convention Against Torture

• Author: Elizabeth Anne Campbell; Rachel DeLia Settlage; Veronica Thronson
• Pages: 87-102

I. Introduction

The previous chapters in this book have dealt primarily with individu-

als who were victims of crimes or abuse perpetrated in the United States.

However, attorneys, government agents, and other members of the justice

system may also encounter individuals who survived criminal or abusive

behavior in their own country before coming to the United States. In most

cases, this means the survivors are ineligible for the forms of relief previ-

ously discussed. For example, a survivor of domestic violence may have

experienced abuse in her home country but not in the United States, making

her ineligible for a U visa or relief under VAWA; however, she fears further

abuse from her partner if forced to return home. A child may fear persecu-

tion in her home country because of her gender, race, or religion, and for

her protection, both of her parents brought her to the United States, mak-

ing the child ineligible for SIJS. In these situations, the individual may be

eligible for asylum, withholding of removal, or relief under the Convention

Against Torture.

The foundation of asylum law in the United States is the 1951 United

Nations Convention Relating to the Status of Refugees and the 1967 United

Nations Protocol Relating to Status of Refugees (together the “UN Refugee

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Removal, and Relief Under the

Convention Against Torture

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Convention”).1 Countries that have ratied the Refugee Convention have

accepted obligations under international law to provide protection to per-

sons eeing from persecution, the most fundamental of which is the duty

of nonrefoulement, or the near-absolute prohibition on the return of the

refugee or an asylum seeker to a country in which her life or freedom would

be threatened.2

The United States ratied the UN Refugee Convention in 1968

3

and,

with the Refugee Act of 1980, amended the Immigration and Nationality

Act (INA) to implement the United States’s obligations under the Refugee

Convention and establish the process for obtaining asylum in the United

States.

4

The INA’s asylum provisions have been amended over the years,

including by the Illegal Immigration Reform and Immigrant Responsibility

Act (IIRIRA) in 1996 and by the REAL ID Act in 2005.5

When discussing asylum and refugee law in the United States, the terms

“refugee” and “asylum seeker”/“asylee” are often used interchangeably;

however, a refugee and an asylum seeker are differentiated by where each

applies for protection. Refugees apply for protection while outside of the

United States, and the decision regarding whether or not to grant refugee

1. Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259,

189 U.N.T.S.137; Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19

U.S.T. 6223, 606 U.N.T.S.267 [hereinafter together UN Refugee Convention]. The

UN Refugee Convention refers collectively to both the 1951 United Nations Con-

vention Relating to the Status of Refugees and the 1967 United Nations Protocol

Relating to Status of Refugees.

2. See UN Refugee Convention, supra note 1; see also UN H C’  R-

 (UNHCR), A O   E A 

N

oN

-R

efoulemeNt

O   1951 C R  

S  R  I 1967 P (Jan. 26,2007), http:// www .unhcr .org

/4d9486929 .html; see also Jean Allain, The Jus Cogens Nature of Non-Refoulement,

13 I’ J. R L 533 (2001).

3. UN H C’  R (UNHCR), S P   1951 C-

 R   S  R   1967 P: A 

A 1, 2011, http:// www .unhcr .org /3b73b0d63 .html (last visited Apr. 10, 2014).

4. Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (Mar. 17, 1980); Immigra-

tion and Nationality Act (INA) § 101(a)(42), 8 U.S.C. § 1101 (2012); INA § 208,

8 U.S.C. § 1158 (2012); 8 C.F.R. § 208 (2013).

5. Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA),

Pub. L. No. 104-208, Div. C, § 604(a), 110 Stat. 3009 (1996); 8 C.F.R. § 208.4(a)

(2) (2013); REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (2005).

ChApter 688

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