Withholding of Removal Application
Withholding of Removal Application
The United Nations Convention Against Torture was signed in 1984, but heres what immigration lawyers dont tell you — the United States didn’t implement it into domestic law until 1998, and even then Congress refused to pass actual legislation. Instead, we got regulations buried in the Federal Register that most attorneys have never read. The Foreign Affairs Reform and Restructuring Act of 1998 (FARRA) said the US wouldnt send people to countries where theyd be tortured, but it didnt create a law — it just told agencies to make regulations. So now we have 8 CFR 208.16-18, which creates withholding of removal under the Convention Against Torture (CAT), but its not a statute you can point to. Its just regulatory language that changes whenever DHS feels like it.
The standard for withholding is “more likely than not” which sounds simple but its actually a mathematical nightmare that destroys peoples cases. More likely than not means 51% — if theres a 50.0001% chance youll be tortured, you win. If its 49.9999%, you get deported to your death. Immigration judges actually talk about percentages in decisions, like theyre calculating odds in Vegas. But how do you prove mathematical probability of future torture? You cant. So judges make up numbers based on their gut feelings. They’ll say things like “I find theres a 40% chance of torture, which doesn’t meet the standard.” How did they calculate 40%? They didn’t. They just decided you lose.The aggregate risk doctrine makes it worse — if theres a 30% chance the police will torture you, a 15% chance the military will, and a 10% chance paramilitaries will, that adds up to 55% so you should win, right? Wrong. Judges say you cant add probabilities like that. Each risk is evaluated separately, so three 30% risks still means you lose.
Government acquiescence is where most cases die.
Its not enough that youll be tortured — the government has to be involved somehow. The regulations say the government must “acquiesce” to the torture, which includes actual participation, willful acceptance, or willful blindness. But federal courts keep making this standard harder. If drug cartels will torture you and the police are too scared to stop them, thats not acquiescence. If corrupt police take bribes to look the other way, that might be acquiescence, but you need evidence of specific bribes to specific officers. If the government tries to stop torture but fails because theyre incompetent, thats definitely not acquiescence. Private actor torture almost never qualifies unless you can prove direct government involvement. Your ex-husband who happens to be a low-level government clerk beating you? Not torture by a public official. The police refusing to arrest him? Not acquiescence unless you can prove they refused because of his government position, not just because they dont care about domestic violence.
Criminal convictions destroy CAT cases in ways attorneys dont explain until its too late. If you have a “particularly serious crime,” youre barred from withholding of removal — but you might still get deferral of removal, which is like withholding’s useless cousin. A particularly serious crime includes any aggravated felony with a sentence of 5 years or more, regardless of how much time you actually served. Drug trafficking offenses are presumed particularly serious unless you can prove otherwise, which is basically impossible. But heres the trap — even if your crime isnt particularly serious, the judge can use it to find you dont deserve protection. They’ll say your criminal history shows youre not credible, or that you’re a danger to the community, or that your testimony about torture risk is self-serving because you just want to avoid deportation for your crimes.
The evidence standards for CAT cases are insane,and most attorneys dont know how to meet them. You need country condition evidence showing torture is systematic in your country, but the State Department Country Reports on Human Rights always downplay torture because of diplomatic relationships. You need medical evidence of past torture, but immigration judges want specific types of documentation — photographs of scars with rulers for scale, medical reports using exact terminology from the Istanbul Protocol, psychological evaluations diagnosing PTSD specifically from torture not just trauma. Expert witnesses help, but they cost $5,000+ and need to have perfect credentials or judges ignore them. One judge rejected an expert because their PhD was in political science not “country conditions expertise,” whatever that means.Personal testimony is never enough anymore. Judges want corroboration for everything — police reports from countries where police are the torturers, medical records from places with no hospitals, witness statements from people too terrified to sign anything.
The difference between withholding and deferral of removal is brutal, but lawyers dont explain it until after you lose. If you get withholding of removal, its somewhat stable — ICE cant deport you unless conditions change dramatically in your country or you commit certain crimes. But if you have criminal convictions that bar you from withholding, the best you can get is deferral of removal. Deferral means ICE can try to deport you anytime they want. They just need to give you a hearing first where they’ll argue country conditions improved or they found a third country to take you. With deferral, you get reviewed every year or two, and during those reviews ICE can detain you. So you spend months in detention while they try to find somewhere to deport you, then they fail and release you, then the cycle repeats next year.
Neither withholding nor deferral gives you any path to a green card. Ever.
You’re stuck in limbo forever, cant petition for family, cant leave the country, cant become a citizen. Your US citizen kids cant petition for you because you were never “admitted” to the US. Your spouse cant petition because you have no legal status to adjust from.
The appeal process for CAT denials goes through three different court systems, each with different standards, and 99% of people give up before the end. First, you appeal to the Board of Immigration Appeals, which takes 18 months and rubber stamps most denials. The BIA doesn’t review facts — only legal errors. So if the judge said your torture was only 49% likely, the BIA wont recalculate. They’ll just check if the judge applied the right legal standard. Then you petition for review to the Circuit Court of Appeals, but REAL ID Act jurisdiction stripping means they cant review factual findings either. The Circuit Court can only look at constitutional claims and questions of law. If the judge didn’t believe your testimony, thats unreviewable. Finally, you can petition the Supreme Court, but they take maybe 1-2 immigration cases per year out of thousands of petitions. Your chance of Supreme Court review is literally 0.01%.Each appeal level has different deadlines, filing fees, and requirements. Miss one deadline by one day and youre deported. File in the wrong court and youre deported. Use the wrong format and they might not even tell you — youll just get deported when your deadline passes.
Living under withholding or deferral status is a special kind of hell nobody prepares you for. Employment authorization takes 6-8 months to get and needs renewal every 1-2 years. The EAD card says “A-10” which employers Google and find out means torture protection, so good luck getting hired. You cant get a drivers license in some states because withholding isnt listed as an acceptable status. You cant get federal financial aid for college. You cant sponsor anyone for immigration, not even your children who are getting tortured in the same country you fled. Travel documents are theoretically possible but take 2+ years to get and only let you travel to specific countries that agree in advance. Most countries wont accept CAT withholding recipients because they know you’re fleeing torture somewhere.If family members visit you from your home country, ICE uses that against you — how can you fear torture if your mother visits safely? If you have kids here, you raise them knowing you could be deported any moment if conditions change. You cant visit dying relatives. You cant attend funerals. You exist in America but dont belong to America.
The particularly sick part is that CAT protection acknowledges youll be tortured if deported,but still treats you like a criminal who doesn’t deserve real safety. The government admits sending you home means torture, maybe death, but wont give you a green card because of a drug possession charge from 20 years ago. They know your government will electrocute you, waterboard you, rape you, break your bones — they put that in the decision granting protection. But they still make you check in with ICE, still threaten detention during reviews, still treat you as deportable.
At Spodek Law Group, we’ve handled hundreds of CAT cases and won cases other lawyers said were impossible. We know which experts judges actually listen to, how to document torture when no documents exist, and how to prove government acquiescence through circumstantial evidence. We’ve gotten withholding for clients with aggravated felonies by proving their crimes weren’t particularly serious. We’ve won CAT cases based on police corruption, military torture, and persecution by government-backed death squads. Most importantly, we tell clients the truth — withholding isnt a happy ending, its survival. Its better than torture, but its not a life. If you’re facing removal and fear torture, we’ll fight to keep you here, but we’ll also be honest about what protection actually means. Because false hope is its own kind of torture, and youve been through enough already.