Are You Eligible for Withholding of Removal?

October 6, 2014 2:13 pm
by David Jakeman

When an alien prepares an application for asylum—usually with the aid of an immigration lawyer—after being placed in removal proceedings it is advisable that the alien also apply for relief under withholding of removal (now known as restriction on removal) and the Convention Against Torture (CAT). These additional forms of removal relief are good alternatives if the alien is unable to qualify for asylum. For example, if the alien has missed the one year deadline for asylum, he may still be eligible for withholding of removal. This post will explain what withholding of removal is and outline the applicable eligibility criteria.

What is Withholding of Removal?

Under the Immigration and Nationality Act, INA § 241(b)(3)(A), the United States government may not remove an alien if he meets certain eligibility criteria as provided below. This form of removal relief is known as withholding of removal and it allows its recipients to remain in the United States with authorization to work. Withholding of removal is similar to asylum in that it is based on the idea that America should be a place of refuge for the persecuted peoples of the world.

However, those who are granted withholding of removal are not entitled to the same range of benefits available under asylum. For example, withholding of removal does not provide its recipients the ability to petition to bring family members to the United States. Nor does it lead to lawful permanent residence, as does asylum. But, unlike asylum, withholding of removal is not a discretionary determination. Thus, if an applicant meets all the eligibility criteria, the immigration judge must grant it.

Are You Eligible?

To be eligible for withholding of removal, an alien must prove to an immigration judge that the “alien’s life or freedom would be threatened in [his home] country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” This standard requires the alien to establish a clear probability of persecution or that it is more likely than not that the alien’s life will be threatened in the country designated for removal on account of one of the five grounds listed above.

The burden of proof is on the applicant and such burden is greater than what is required to demonstrate asylum. Also, the applicant can create a presumption that his life would be threatened in the country of removal if he can establish that he was already persecuted there in the past. When this occurs, the presumption may be rebutted, and thus withholding of removal denied, if the immigration judge finds by a preponderance of the evidence that (1) there has been a fundamental change in the circumstances in the country of removal such that the applicant’s life would no longer be threatened on account of the five grounds or (2) “the applicant could avoid a future threat to his or her life or freedom by relocating to another part of the proposed country of removal and, under all the circumstances, it would be reasonable to expect the applicant to do so.” See 8 C.F.R. §1208.16 (b)(1). There is no one year deadline to apply for withholding of removal, as is the case with asylum.

Finally, even if an applicant can meet all of the requirements for withholding of removal, under INA § 241(b)(3)(B), he will still be ineligible if:
1) “the alien ordered, incited, assisted, or otherwise participated in the persecution of an individual because of the individual’s race, religion, nationality, membership in a particular social group, or political opinion;
2) the alien, having been convicted by a final judgment of a particularly serious crime, is a danger to the community of the United States;
3) there are serious reasons to believe that the alien committed a serious nonpolitical crime outside the United States before the alien arrived in the United States; or
4) there are reasonable grounds to believe that the alien is a danger to the security of the United States.”