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Withholding of Removal

Withholding of Removal

Applications for asylum, withholding of removal, and protection under the Convention Against Torture can be filed on the same Form I-589. Similar to an application for asylum relief, withholding of removal is an alternative form of relief for an individual fearing persecution in his/her country of origin. Withholding of removal is granted pursuant to Section 241(b)(3) of the Immigration and Nationality Act (INA). Withholding of removal can only be granted by an Immigration Judge in removal proceedings; it cannot be granted by an Asylum Officer.

An application for withholding of removal may rely on the same factual basis as an asylum claim. The ultimate burden of proof rests upon the applicant for a claim of withholding of removal (as it does for asylum applicants and those seeking protection under the Convention Against Torture). While the “well founded fear” standard is applied to asylum claims, the standard of proof for withholding of removal claims is based on a likelihood of harm – that there is a “clear probability” the applicant’s life or freedom would be threatened on account of his/her race, religion, nationality, membership in a particular social group, or political opinion. The Supreme Court has stated that this “clear probability” standard means the applicant must show that it is “more likely than not” this persecution will occur if the applicant is returned to his/her country of origin. In order to be granted withholding of removal, the applicant must meet a higher standard of proof than for the standard required for asylum relief (courts have recognized that demonstrating as little as a ten percent chance of persecution may demonstrate a well-founded fear sufficient for asylum). Thus, the standard of proof for asylum is more generous than that required for a grant of withholding of removal. This means that if an applicant does not meet the standard for asylum, he/she cannot meet the higher burden of proof required for a grant of withholding of removal.

While asylum relief is a discretionary form of relief, withholding of removal is mandatory in instances where an applicant demonstrates that he/she meets the “clear probability” test and no bars to eligibility apply. A finding of past persecution results in a presumption that the applicant’s life or freedom would be threatened in the future, warranting a grant of withholding, assuming the past persecution took place in the country of origin.

Withholding of removal applications are not subject to the one-year filing deadline imposed upon asylum applications (aside from certain exceptions, eligibility for asylum requires that the applicant file his/her asylum application within one year of entering the U.S.). Thus, applications for withholding of removal may be filed at any time.

A notable aspect of a grant of withholding of removal is that an immigration judge may not grant an order of removal without first ordering the applicant removed. What this means, in essence, is that an IJ grants withholding by first ordering an applicant removed (and issuing such an order). The issuance of this removal order is then followed by the IJ granting withholding of removal; stating that although the applicant now 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 that individual back to his/her country of origin. When asylum is granted, no such removal order is entered. This distinction may be important to consider if applying for other forms of relief after a grant of withholding of removal, as a person granted withholding of removal technically has an unexecuted removal order entered against him/her. For example, if applying for adjustment of status as a beneficiary of a family petition, the fact that a removal order is technically issued against the individual will need to be addressed in that instance.

There are grounds for disqualification for certain categories of individuals who might otherwise have had a valid claim for withholding of removal. In the following instances, deportation of an individual will not be withheld (withholding of removal will not be granted), despite the fact that the individual meets the “clear probability” test demonstrating that his/her life or freedom would likely be threatened:
1) 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;
2) 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;
3) Where there are serious reasons for considering that the applicant has committed a serious, nonpolitical crime before arriving in the U.S.;
4) 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
5) The applicant engaged in genocide or was a Nazi, as defined in INA § 237(a)(4)(B).


A grant of withholding of removal does not provide as many benefits as a grant of asylum relief. The individual can seek work authorization with either a grant of asylum or withholding of removal. However, unlike a grant of asylum, a grant of withholding of removal does not provide a basis for adjustment to legal permanent resident status or eventual U.S. citizenship. Additionally, those granted withholding of removal cannot travel outside of the U.S., since travel to a country may provide evidence that you are no longer in danger and could safely reside in a country other than the U.S. Furthermore, under a grant of asylum, immediate family members (children and spouses) may apply as derivatives on the principal individual’s application, whereby a grant of asylum for the principal applicant can allow for these derivative family members to be granted asylum, if accompanying or following to join the principal applicant. No such derivative status exists for those who receive a grant of withholding of removal. A grant of withholding to an individual does not allow for derivative benefits for the person’s spouse or child.

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 where the government can prove: 1) that country conditions in the country of origin have changed, such that the person no longer has a well-founded fear of persecution, 2) there was fraud in the application for withholding of removal, or 3) the person falls under a ground that would have initially disqualified him/her from receiving a grant of withholding (such as the conviction of a particularly serious crime).

Protection under Article 3 of the United Nations Convention Against Torture (“CAT” relief)

Protection under Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (or “CAT” relief) may be submitted on the same I-589 application for asylum or withholding of removal. However, unlike asylum or withholding of removal, there is no formal application for CAT. Because there is no separate and distinct procedure explicitly established for seeking CAT relief, the I-589 responses demonstrating the applicant’s fear of torture constitute claims for CAT relief.

Article 3 of the CAT states that “[n]o State Party shall expel, return or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture,” noting that in implementing this mandate, the U.S. “shall take into account all relevant consideration including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant, or mass violations of human rights.” Pursuant to Article 3 of the CAT, U.S. Congress has stated that it shall be the policy of the U.S. not to effect involuntary return of any person to a country where there are substantial grounds for believing that person would be in danger of being subjected to torture.

The Board of Immigration Appeals (“BIA”), the U.S. Department of Justice, and federal legislation have each contributed to the definition of “torture” that would warrant CAT relief. In Matter of J-E-, 23 I&N Dec. 291, 297-99 (BIA 2002), the BIA defined torture as an act that: 1) causes severe physical or mental pain or suffering that must be “an extreme form of cruel and inhuman treatment, and does not include lesser forms of mistreatment; 2) is “specifically intended” to inflict severe physical or mental pain or suffering (an act that results in unanticipated or unintended severity of pain or suffering does not constitute torture); 3) has an “illicit purpose” such as “obtaining information or a confession, punishment for a victim’s or another’s act, intimidating or coercing a victim or another or any discriminatory purpose”; 4) is an intentional governmental act, directed against a person in the offender’s custody or control (torture does not include negligent acts or acts committed by private individuals not acting on behalf of the government); and 5) “does not include pain or suffering arising only from, inherent in, or incidental to lawful sanctions” such as a judicially imposed death penalty. For relief under CAT, the torture must be by, under the direction of, or with the acquiescence of a government official, but need not be on account of a person’s race, religion, nationality, membership in a particular social group, or political opinion.

The burden of proof for CAT claims is similar the standard for withholding of removal. For CAT relief to be granted, the applicant must demonstrate that he/she is “more likely than not” to be subject to torture upon removal. CAT claims may be proven by the applicant’s own testimony without corroboration, only if the applicant is found to be a credible witness. Unlike claims of asylum or withholding of removal, there is no subjective fear component considered in a determination of CAT claim; rather the applicant must meet the burden of proof showing that objectively it is more likely than not he/she will be subjected to torture upon removal. In making a determination on whether a grant of CAT relief is warranted, the adjudicator must consider all evidence, including any evidence of past torture, evidence that the CAT applicant could not safely relocate to another part of his/her country of origin where he/she would not likely be tortured, any evidence of flagrant or mass human rights violations within the country of origin, and any other information providing evidence of current country conditions. Unlike asylum or withholding relief, there are no ineligibility bars to protection under CAT.

A grant of withholding under CAT allows the individual to obtain work authorization. However, unlike a grant of asylum, a grant of CAT relief does not provide a basis for adjustment to legal permanent resident status or eventual U.S. citizenship. CAT relief does not allow for derivative benefits for the person’s spouse or child.

Individuals who are ineligible for asylum relief may still be able to apply for withholding of removal and CAT relief. The attorneys at Gavlin & Associates have a successful history of obtaining results for individuals seeking these forms of relief. Contact our firm to schedule a consultation, so that we can assist you on the path toward legal status in the United States.

 

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