Introduction Asylum is the vehicle through which the US provides protection to aliens who are physically present in this country and who are in danger of persecution if forced to return to the countries from which they fled. Asylum can be brought either as an affirmative application by someone who has not been apprehended by INS, OR as a defense in removal proceedings. I. Sources of Law for Asylum and Withholding of Removal A. Statutory Sources 1. Asylum is discretionary under US law.
Withholding is a mandatory remedy which requires a higher standard of proof than asylum.
An application for asylum is automatically considered a request for withholding as well. A grant of withholding prohibits INS from deporting the individual to the specific country of persecution, but the individual may be deported to another country where they would not face such persecution. BIA decisions are controlling precedent for asylum unless a federal court overrules. A federal appellate court decision is the rule for that jurisdiction. Decisions of Immigration Judges in the Executive Office of Immigration Review.