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

AuthorElizabeth Anne Campbell; Rachel DeLia Settlage; Veronica Thronson
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 Protocol Relating to Status of Refugees (together the “UN Refugee
Chapter 6
Asylum, Withholding of
Removal, and Relief Under the
Convention Against Torture
Settlage_ImmRelief_20140717_09-11_Final.indd 87 7/17/14 9:12 AM
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
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
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,
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 
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
Settlage_ImmRelief_20140717_09-11_Final.indd 88 7/17/14 9:12 AM

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT