Basics of Withholding of Removal

It is important to understand the basics of “withholding of removal” before deciding to pursue this type of immigration relief. The following information will provide you a summary of the most important aspects of withholding of removal to help you determine whether you could be eligible for this type of relief.

(1) Determining eligibility for withholding of removal (an alternative form of relief to asylum):

Withholding of removal is granted pursuant to Immigration and Nationality Act (INA) Section 241(b)(3). Withholding of removal is similar to an application for asylum in that it is intended as a form of relief from removal for an individual who fears persecution in his or her home country. While asylum is a discretionary form of relief, withholding of removal is mandatory in the instance where an applicant is able to demonstrate that he or she meets the “clear probability” test and that no bars to eligibility apply. A finding of past persecution of the individual in their home country would result in a presumption that the applicant’s life or freedom would be threatened in the future, and would warrant granting of withholding.

Since withholding of removal is as an alternative form of relief to asylum, an application for withholding of removal can rely on the same set of facts as an asylum claim. As it does for those seeking asylum, the burden of proof for a claim of withholding of removal rests upon the applicant. For asylum claims, the “well founded fear” standard applies, and the standard of proof for a withholding of removal claim is based on a likelihood of harm – whether there is a “clear probability” that the applicant’s life or freedom would be threatened on account of his or her race, religion, nationality, membership in a particular social group or political opinion.

The “clear probability” standard means that the applicant must show that he or she is “more likely than not” to suffer persecution if they are returned to their home country. In order to be granted withholding of removal, the applicant must meet a higher standard of proof than the one that is required for asylum relief. The standard of proof for asylum relief is more generous in that a “well founded fear” can be established with the applicant demonstrating as little as a ten percent chance of persecution in the home country. So, if an applicant does not meet the standard of proof for asylum, he or she cannot meet the higher burden of proof required for the granting of a withholding of removal.

(6) Grounds that disqualify an applicant from seeking withholding of removal:

Even if an applicant has a valid claim for withholding of removal, certain grounds for disqualification can bar relief for certain applicants. In such instances, removal or deportation of the applicant will not be withheld (that is, withholding of removal will not be granted), despite the fact that the individual meets the “clear probability” test demonstrating that his or her life or freedom would likely be threatened:

(a) The applicant ordered, incited, assisted, or otherwise participated in the persecution of any other person on account of race, religion, nationality, membership in a particular social group, or political opinion;

(b) The applicant constitutes a danger to the U.S. community, having been convicted by a final judgment of a particularly serious crime. The determination of whether someone has committed a particularly serious crime is extremely fact-specific. However, a person convicted of an aggravated felony for which he/she was sentenced to an aggregate term of imprisonment totaling 5 years will be considered to have committed a particularly serious crime;

(c) Where there are serious reasons for considering that the applicant has committed a serious, nonpolitical crime before arriving in the U.S.;

(d) Where there are reasonable grounds to believe that an individual is a danger to U.S. security, or meets the definition of a “terrorist” as defined in INA ? 237(a)(4)(D); or

(e) The applicant engaged in genocide or was a Nazi, as defined in INA ? 237(a)(4)(B).

(3) Filing for withholding of removal and deadlines:

Pursuant to INA Section 241 (b)(3) an applicant can file for asylum, withholding of removal, and protection under the Convention Against Torture using the same Form I-589. However, withholding of removal cannot be granted by an Asylum Officer; it can only be granted by an Immigration Judge in removal proceedings.

There is a strict one-year deadline imposed upon asylum application. Aside from certain exception, the eligibility for asylum requires that the applicant file his or her asylum applicant within one year of enter the U.S. Withholding of removal applications are not subject to a one-year filing deadline. Thus, application for withholding of removal can be filed at any time, without being time-barred. However, it is essential not to delay filing an applicant for withholding of removal, as a delay in filing could indicate to an immigration judge that the applicant’s fear of returning to their home country is not urgent or genuine.

(5) Context under which withholding of removal is sought:

Withholding of removal is sought in the context of removal proceedings. An Immigration Judge orders the applicant removed. If the Immigration Judge then accepts the applicants application for withholding of removal, he essentially states that although the applicant has a removal order, the mandatory prohibition against removing a person who has met the “clear probability” standard prevents the U.S. government from sending the applicant back to his or her home country. In the context of asylum, no such removal order is entered. This distinction is important when considering which form of relief is appropriate.

(7) The benefits of receiving a grant of withholding of removal:

Being granted withholding of removal is not as beneficial to an applicant as the grant of asylum of relief is. An individual granted either withholding of removal or asylum can seek work authorization. However, unlike a grant of asylum, a grant of withholding of removal does not provide a basis for adjustment of status to legal permanent resident status or eventual U.S. citizenship.

In addition, applicants granted withholding of removal cannot travel outside of the U.S., since such international travel may provide evidence that they are no longer in danger or could safely reside in another country. Under the grant of asylum, immediate family member (that is, children and spouses) may apply as derivatives on the principal asylum grantee’s application, whereby a grant of asylum for the principal applicant could result in derivative family members gaining asylum relief as well. No such derivative status exists for those who receive a grant of withholding of removal.

(8) Withholding of removal is not a permanent form of relief:

While a grant of withholding of removal allows an individual to remain lawfully in the U.S. for an indefinite period of time, a grant of withholding of removal may be revoked at any time where the U.S. government can prove the ground of revocation by a “preponderance of the evidence.” Withholding of removal may be revoked in instances where the government can prove that the individual’s home country’s condition has changed, such that the person no longer has a well-founded fear of persecution, or if there was fraud in the application for withholding of removal, or if the individual falls under one of the categories of grounds of disqualification that would have prevented the applicant receiving a grant of withholding of removal in the first place.

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