Withholding of Removal

Withholding of removal is a form of relief from removal/deportation under U.S. immigration laws. When granted, it ensures that an individual won’t be deported to a specific country where they fear persecution based on race, religion, nationality, membership in a particular social group, or political opinion. Unlike asylum status, withholding of removal is country-specific, meaning that the individual could still be removed to a third country where no risk of persecution exists.

When Is Withholding of Removal Available?

Withholding of removal becomes available when an individual can demonstrate a “clear probability” that they would face persecution in the country of proposed removal. This standard is higher than the “well-founded fear” standard for asylum. Therefore, if someone doesn’t qualify for asylum because they can’t meet its standard, they generally won’t meet the stricter standard for withholding of removal.

What Is the Difference Between Asylum and Withholding of Removal?

Both asylum and withholding of removal offer protection to individuals fearing persecution.

However, there are several key differences:

• Standard of Proof: Asylum requires a “well-founded fear” of persecution, whereas withholding of removal requires proof of a “clear probability” of persecution.
• Benefits: Asylees can apply for permanent resident status (a green card) one year after being granted asylum. Individuals granted withholding of removal cannot obtain a green card based solely on having this status.
• Geographical Restriction: Withholding of removal prevents deportation to a specific country, but the U.S. government can deport the individual to a third country. Asylum provides broader protection against removal.
• Duration: Asylum status can lead to permanent residency and, ultimately, citizenship. Withholding of removal does not provide a direct path to permanent residency or citizenship and is subject to periodic review.

How Do I Apply for Withholding of Removal?

To apply for withholding of removal, the individual typically submits Form I-589, Application for Asylum and for Withholding of Removal, to the U.S. Citizenship and Immigration Services (USCIS) or presents the claim in removal proceedings before an immigration judge.

Supporting documentation, such as evidence of past persecution or conditions in the country of proposed removal, should accompany the application. It’s crucial to ensure the application is thorough, as the evidentiary requirements are stringent.

Reasons for Denial of Withholding of Removal

The U.S. immigration system maintains a set of criteria by which it evaluates claims for withholding of removal. Beyond not meeting the “clear probability” standard, claims can be denied due to reasons such as serious criminal activity committed by the applicant in the U.S., prior denials of similar protection, or when the evidence suggests that the individual is unlikely to face the stated persecution upon return.

Mandatory Bars to Withholding of Removal

Certain actions or conditions can disqualify an individual from receiving withholding of removal. For instance, those who have persecuted others based on race, religion, nationality, political opinion, or membership in a particular social group are barred. Similarly, individuals who have committed particularly severe crimes or are perceived as a threat to U.S. national security cannot claim this form of protection.

Here are more specific actions or conditions that might disqualify an individual from receiving withholding of removal:

1. Conviction for a Serious Crime

An individual convicted of a serious non-political crime outside the U.S. prior to their arrival may be barred from withholding of removal. The severity and nature of the crime are taken into consideration.

2. Terrorism-Related Activities

Persons who are believed to have engaged in terrorist activities, provided material support to terrorist organizations, or are affiliated with terrorist groups are categorically barred. U.S. immigration laws have a broad definition of “terrorist activities,” and sometimes even actions not traditionally seen as terrorism can be included under this definition.

3. Firm Resettlement

If an applicant has firmly resettled in another country before arriving in the U.S., they may be barred from obtaining withholding of removal. Firm resettlement means the individual had the opportunity to obtain permanent residency status or some form of long-term secure residence in another country.

4. Previous Denial of Asylum or Withholding

If an individual has previously been denied asylum or withholding of removal by an immigration judge or the Board of Immigration Appeals (BIA), and they cannot demonstrate materially changed circumstances in their home country, they might be barred from raising the same claim again.

5. Participation in the Persecution of Others

This goes beyond the already mentioned persecution based on race, religion, etc. If there’s credible evidence that the applicant was involved in persecuting others, regardless of the reason, they would be barred from obtaining relief.

6. Waiver

If someone was previously removed from the U.S. and then illegally reentered, they may be barred from seeking withholding of removal. This is especially the case if they did not seek advanced permission for re-admission after previous removal.

7. Security-Related Bars

Individuals who’ve engaged in espionage, any activity to overthrow the U.S. government, or have been a member of a totalitarian party may be denied withholding of removal.

Withholding of Removal Benefits and Limitations

Receiving withholding of removal can be a relief for many, but it’s not without its constraints. Beneficiaries cannot petition to bring family members to the U.S. They also lack a direct avenue to achieve permanent residency or citizenship, often leaving them in a state of limbo. However, it provides a crucial lifeline by protecting them from deportation to a potentially harmful environment.

The Role of Country Conditions in Claims

Claims for withholding of removal are deeply intertwined with the prevailing conditions in the proposed country of removal. Documentation of ongoing conflicts, patterns of persecution, or other risks is essential in bolstering a claim. However, if the conditions in that country improve, it may undermine a person’s assertion that they fear returning.

The Intersection of Withholding of Removal and Other Relief Forms

Some applicants may simultaneously seek protection under the Convention Against Torture (CAT) alongside withholding of removal. It’s crucial to understand how these different forms of protection interact. For instance, while both protect against deportation, CAT protection has a different standard of proof and doesn’t consider the applicant’s criminal history.

The Emotional and Psychological Impact

The process of seeking withholding of removal, especially when fleeing persecution, can take a toll on one’s mental health. Applicants often relive traumatic experiences when providing testimonies or evidence. The uncertainty of the outcome and potential separation from loved ones further exacerbates the emotional strain.

Preparing for the Immigration Court Hearing

The court hearing is a critical step in the process. Applicants should be prepared to present their case compellingly and coherently. Common mistakes to avoid include not providing sufficient evidence, being unprepared for cross-examinations, or not understanding the specific legal requirements of their claim.

Post-Decision Steps and Considerations

Once a decision on the withholding of removal claim is rendered, individuals must be prepared for the next steps. If the claim is granted, they must understand the rights and limitations that come with this status. If denied, it’s crucial to know the appeal process, potential for other relief forms, or preparations for removal.

Do I Need a Lawyer to Help Me with Withholding of Removal Issues?

If you or someone you know is considering applying for withholding of removal, it’s essential to have guidance. An experienced asylum lawyer can provide invaluable advice, help prepare a strong case, and represent you in proceedings.

Find a knowledgeable asylum lawyer through LegalMatch to help ensure the best possible outcome for your case.