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If the individual is found by the asylum officer or by the Immigration Judge to have a reasonable fear of persecution or torture, he or she may apply for withholding of removal before the Immigration Judge.  The Immigration Judge will consider the applicant’s request for withholding of removal in accordance with 8 CFR § 208.16. The applicant has the burden of proof of establishing that he or she is eligible for withholding of removal under either of the following:

  • Section 241(b)(3) of the INA:
    The individual establishes that it is more likely than not that his or her life or freedom would be threatened in the proposed country of removal on account of his or her race, religion, nationality, membership in a particular social group, or political opinion.
  • Convention Against Torture:
    The individual establishes that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.

If the applicant is found to have a reasonable fear of persecution or torture, the Immigration Judge will consider whether the applicant is barred from a grant of withholding of removal. See 8 CFR § 208.16(d). If a bar applies, but the applicant has established that he or she would be tortured in the country of return, the Immigration Judge will grant deferral of removal. See 8 CFR § 208.17.

If the Immigration Judge grants withholding of removal, the applicant cannot be removed to the country where the person fears persecution or torture, but may be removed to another country. If the Immigration Judge does not grant withholding of removal, the applicant may appeal the decision to the Board of Immigration Appeals.

Last Reviewed/Updated: 
09/26/2008