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The individual may apply for asylum and withholding of removal before the Immigration Judge, also known as the “Defensive” asylum process.

The burden of proof is on the individual to establish that he or she is eligible for asylum or other protection in the United States.

If the applicant is found to have a credible fear of persecution or torture, the Immigration Judge will consider whether the applicant is barred from a grant of asylum or 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.

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