Withholding of Removal vs CAT: Which to Argue and When

Last updated: 7 October 2026

Withholding of removal is a mandatory ban on returning a person to a country where their life or freedom is more likely than not to be threatened. The threat must be because of race, religion, nationality, membership in a particular social group or political opinion. The rule comes from INA section 241(b)(3). Protection under the Convention Against Torture (CAT) works differently. It needs no protected ground. Instead, the applicant must show that torture by, or with the acquiescence of, a public official is more likely than not. Both forms of protection stop removal to one country only. Neither gives a green card, and neither protects the family.[1]

This guide is for US immigration lawyers. It compares asylum, statutory withholding, CAT withholding and CAT deferral side by side. It also sets out the bars, the benefits, the 2025 and 2026 precedents, and the third-country removal litigation. Finally, it explains which claim to lead with in each type of case and how country expert evidence differs for each. Last reviewed: October 2026.

Withholding of removal, asylum and CAT compared

US law offers four separate forms of fear-based protection in immigration court. Asylum under INA section 208 is discretionary and can lead to permanent status. Statutory withholding under INA section 241(b)(3) and 8 CFR 1208.16(b) is mandatory once proven, but it only blocks removal to the country of feared harm. CAT withholding under 8 CFR 1208.16(c) works the same way, with torture in place of persecution. CAT deferral under 8 CFR 1208.17 is the narrowest form. It covers people who meet the torture test but fall within a mandatory bar.[2]

One Form I-589 covers all of them. Moreover, the regulations let the immigration judge decide asylum and withholding in the same case, whether or not asylum is granted. Therefore, you plead all four in the alternative, and the judge works down the list.

Standards of proof and the nexus question

The gap between asylum and withholding starts with two Supreme Court cases. In INS v. Stevic (1984), the Court held that withholding requires a "clear probability" of persecution, meaning it is more likely than not. Three years later, INS v. Cardoza-Fonseca held that asylum uses a lower test. A well-founded fear does not require a better than even chance. In fact, the Court observed that a 10% chance of persecution can still support one.[3]

CAT uses the same probability threshold as withholding. Under 8 CFR 1208.16(c)(2), the applicant must show that torture in the proposed country is more likely than not. If the applicant meets that burden, CAT protection follows as of right. The judge grants CAT withholding, or deferral if a mandatory bar applies.[4]

"One central reason" or "a reason"?

The asylum statute requires a protected ground to be "at least one central reason" for the persecution. By contrast, the withholding statute does not use those words. In Matter of C-T-L- (2010), the Board applied the same "one central reason" test to withholding. However, the Ninth Circuit rejected that view in Barajas-Romero v. Lynch (2017). It held that a protected ground need only be "a reason" for the harm, a less demanding test. The Sixth Circuit reached the same result in Guzman-Vazquez v. Barr (2020). Most other circuits have applied the Board's test. In practice, a mixed-motive case that fails the asylum test may still win withholding in those two circuits.[5]

The Board has also tightened nexus and ground definitions in its Volume 29 precedents since 2025. In Matter of C-I-R-H- & H-S-V-R-, it held that nexus needs a showing beyond speculation, statistical likelihood or coincidence. Matter of K-E-S-G- held that a group defined by sex, or by sex and nationality alone, is not cognizable. Furthermore, Matter of D-G-E-A- & N-G-G-E- held that opposing gangs is not, by itself, a political opinion. The opinion must concern a discrete cause tied to a government, including a de facto one.[6]

On 2 September 2025, the Attorney General went further. Matter of S-S-F-M- overruled the 2021 decision that had vacated A-B- I and A-B- II, restored both, and overruled Matter of A-R-C-G-. On the same day, Matter of R-E-R-M- & J-D-R-M- restored Matter of L-E-A- (A.G. 2019) on family-based groups. As a result, domestic violence and family-group claims now face the stricter framework again. These rulings hit asylum and withholding equally. They do not touch CAT, which has no nexus element.[7]

What CAT requires: torture, acquiescence and aggregate risk

Under 8 CFR 1208.18(a)(1), torture is severe pain or suffering, physical or mental, intentionally inflicted for a purpose such as punishment, coercion or discrimination. A public official acting in an official capacity must inflict it, instigate it, consent to it or acquiesce in it. In Matter of O-F-A-S- (2020), the Attorney General held that this means acting under color of law. He drew no line between junior and senior officials. Meanwhile, the Ninth Circuit held in Zheng v. Ashcroft (2003) that acquiescence includes willful blindness.[8]

Acquiescence is now the hardest element in gang and cartel cases. In Matter of M-S-I- (2025), the Board held that the CAT acquiescence test differs from the "unable or unwilling" test for asylum. Private violence plus speculation that police will not help is not enough. Matter of O-A-R-G- (2025) added that acquiescence requires greater government complicity. Then came Matter of H-L-S-M- (June 2026). There, the Board found no likely acquiescence where parts of the government were fighting criminal groups, "even if such efforts have not been effective".[9]

Two further rules shape the probability analysis. First, in the Ninth Circuit, the judge must assess the aggregate risk of torture from all sources, not split the claim into separate theories (Cole v. Holder; Quijada-Aguilar v. Lynch). Second, Matter of J-F-F- (A.G. 2006) holds that where a claim depends on a chain of events, each step must be more likely than not. In addition, 8 CFR 1208.16(c)(3) lists past torture, internal relocation and mass human rights violations as factors.[10]

Bars to withholding of removal and CAT

The bars decide most strategy questions. The one-year filing deadline in INA section 208(a)(2)(B) applies to asylum only. Similarly, the firm resettlement bar in section 208(b)(2)(A)(vi) blocks asylum but not withholding. Our guide to the one-year filing deadline in US asylum covers the exceptions for changed and extraordinary circumstances.[11]

Crimes work differently for each form. For asylum, any aggravated felony counts as a particularly serious crime. For withholding, the statute makes an aggravated felony a per se particularly serious crime only where the total sentence is at least five years. Below that line, the judge decides case by case. INA section 241(b)(3)(B) also bars persecutors of others, people who committed a serious nonpolitical crime abroad, and people regarded as a danger to US security. The same bars apply to CAT withholding through 8 CFR 1208.16(d)(2).

The material support bar can now arise in Latin American gang and cartel cases. In Matter of M-H-Z- (2016), the Board held that the bar has no implied duress exception, even for support paid under threat of death. It applies to asylum and to withholding. On 20 February 2025, the State Department designated eight groups as Foreign Terrorist Organizations. They include Tren de Aragua, MS-13, the Sinaloa Cartel and CJNG. Consequently, extortion payments to these groups can raise the material support bar. CAT deferral has no such bar.[12]

A newer procedural trap also affects asylum alone. In Matter of L-F-R- (July 2026), the Board held that failure to pay the annual asylum fee leads to pretermission or abandonment of the asylum application. However, the fee and its consequences do not extend to statutory withholding or CAT.[13]

What each grant gives the client

Asylum is the only grant that builds a future in the United States. A spouse and children can receive derivative status under INA section 208(b)(3)(A). The asylee can apply for permanent residence after one year under section 209(b). Asylees can also travel on a refugee travel document.[15]

Withholding gives far less. The judge orders removal and then withholds it to the named country. The grantee may work under 8 CFR 274a.12(a)(10), but family members must qualify on their own. There is no path to a green card. Furthermore, leaving the United States executes the removal order under 8 CFR 1241.7. Most importantly, 8 CFR 1208.16(f) allows DHS to remove the person to a third country.

CAT deferral is the weakest grant. The judge must warn the person that it confers no lawful status and may not end detention. It lasts only until terminated. DHS can move for a termination hearing with new evidence, and the person then carries the burden again.

Withholding-only proceedings and judicial review

People with a reinstated removal order, or an administrative removal order for an aggravated felony, cannot seek asylum. Instead, they enter withholding-only proceedings for statutory withholding and CAT. In Johnson v. Guzman Chavez (2021), the Supreme Court held that their detention falls under section 1231, not section 1226. In Matter of J-A-N-M- (2025), the Board held that a judge may not end these proceedings as a matter of discretion.[17]

Three Supreme Court rulings now govern review. Nasrallah v. Barr (2020) confirmed that courts of appeals can review factual challenges to CAT orders. Next, Riley v. Bondi (26 June 2025) held that a Board order in withholding-only proceedings is not a "final order of removal". Instead, the 30-day clock in 8 USC 1252(b)(1) runs from the underlying removal order. The Court also held that the deadline is a claim-processing rule, not a jurisdictional one. One practical response is a protective petition filed within 30 days of the reinstated or administrative order. Finally, Urias-Orellana v. Bondi (4 March 2026) applied the deferential substantial-evidence standard. It governs the agency's finding on whether set facts amount to persecution.[18]

Third-country removals after a grant

A withholding or CAT grant protects against one country only. DHS relies on that rule in a third-country removal policy that has been in litigation since 2025. In DHS v. D.V.D., the Supreme Court stayed a district court injunction on 23 June 2025 and clarified the stay on 3 July 2025. The injunction had required written notice and a chance to raise fear before removal to a third country. The district court then entered final judgment on 25 February 2026, and the First Circuit largely affirmed on 18 September 2026. On 29 September 2026, the Supreme Court stayed that judgment and granted certiorari. The case is listed for the December 2026 sitting.[19]

For now, the client's best protection is the record built before the merits hearing. Under 8 CFR 1240.10(f), the judge must identify alternative countries of removal. Ask the judge to designate them on the record. Then plead withholding and CAT for each one that carries a real risk, with country evidence for each. The Board's approach to asylum cooperative agreements points the same way. In Matter of C-I-G-M- & L-V-S-G- (2025), the respondent had to prove likely harm in the third country.[20]

Withholding of removal or CAT: which to argue and when

The safe default is simple. Plead asylum, statutory withholding and CAT in the alternative on every Form I-589. Even so, the emphasis should change with the facts. The table below matches common case profiles to the claim that should carry the weight.

Two cautions apply across the table. First, CAT is not an easy fallback in gang cases. After M-S-I-, O-A-R-G- and H-L-S-M-, a CAT claim without specific evidence of official involvement will usually fail. Second, a withholding grant may cost the asylum claim in discretion after P-A-C-. Accordingly, argue the equities for asylum in full, even when withholding looks secure.

The EOIR data shows how narrow these routes are. In FY 2026 to the third quarter, judges granted 7,231 asylum applications and denied 89,740. Over the same period, they also granted 1,148 statutory withholding claims. CAT grants were rarer still: 269 for withholding and 90 for deferral.[21]

How country expert evidence differs for each claim

The legal elements decide what the expert must cover. For asylum and withholding, the report should explain who the persecutor is and why they target people like the client. It should also show whether the proposed social group is recognised locally and whether the state can protect. For CAT, the questions change. The expert must address the probability of torture for this individual and the conduct of officials. Evidence of collusion, bribes, joint operations and impunity carries far more weight than proof of weak policing.

The Board has recently weighed experts closely. In Matter of G-M-I- (2026), it held that opinions built on anecdotal or inaccurate facts carry far less weight. In Matter of D-J-L- (2026), it held that a judge erred in giving significant weight to an expert who would not consider contrary evidence. Then, in H-L-S-M-, the Board found clear error where the judge relied on general evidence and expert testimony about corruption. The judge had overlooked the applicant's own circumstances. Therefore, a CAT report should tie each risk factor to the client's profile. It should also cite dated sources and address contrary evidence openly.[22]

Where the client was tortured before, medical evidence also matters, since 8 CFR 1208.16(c)(3)(i) lists past torture first. Our guide to Istanbul Protocol reports explains how judges weigh that evidence. For a country example of cartel violence and state collusion, see our Mexico country conditions report.

Watch it on our YouTube channel. Our video on gang and cartel cases from Colombia, Mexico, Honduras and Venezuela covers the evidence these claims need.

YouTube video player

If you need a report on nexus, acquiescence or torture risk for a specific country, you can find an expert witness through our directory.

Common questions about withholding of removal and CAT

Can a client get withholding of removal after missing the one-year deadline?

Yes. The one-year deadline in INA section 208(a)(2)(B) applies to asylum only. Statutory withholding and CAT have no filing deadline, although the client must still meet the higher "more likely than not" standard.

Does CAT require a protected ground?

No. CAT has no nexus element. However, a public official acting under color of law must inflict the torture or consent or acquiesce in it.

Can a person with withholding bring their family?

No. Withholding and CAT have no derivative status and no follow-to-join process. Each family member needs their own claim.

Can DHS deport someone who won withholding?

Not to the country named in the grant. Yet 8 CFR 1208.16(f) allows removal to a third country. The procedures for those removals are before the Supreme Court in D.V.D., with the case listed for the December 2026 sitting.

What is the difference between CAT withholding and CAT deferral?

Both require the same proof of likely torture. CAT withholding goes to applicants who are not barred. Deferral goes to barred applicants, gives no status, and is easier for DHS to terminate.

Conclusion

Withholding of removal and CAT protection answer different problems. Withholding helps the client who has a protected ground but a bar to asylum, such as a late filing or firm resettlement. In the Sixth and Ninth Circuits, it also helps where motives are mixed. CAT helps where nexus fails or a criminal or terrorism bar applies, but only with real evidence of official involvement. In every case, plead asylum, withholding and CAT together. Then put third countries on the record and match the expert evidence to each claim.