What is withholding of removal?

Withholding of removal protects an alien from return to a home country that threatens his or her life or freedom. This protection from deportation is guaranteed by Article 3 of the Refugee Convention and implemented by Sections 243(h) and 241(b)(3) of the Immigration and Nationality Act. Under these laws, immigration judges must allow aliens to invoke claims for withholding of removal at any time during deportation proceedings and seek review of the judge’s decision by the Board of Immigration Appeals.

Differences Between Asylum and Withholding of Removal

Unlike asylum, which can lead to permanent legal status in the United States, withholding of removal offers a more temporary form of protection with a different standard of proof. Aliens can seek to defer removal to their home country if they can demonstrate it is more likely than not that they would be tortured if returned. On the one hand, withholding of removal carries a higher burden of proof than asylum because it compels the alien to show torture is more likely than not. Asylum only requires a “well-founded” fear of persecution.

On the other hand, withholding applicants need not prove persecution based on one of the five enumerated grounds required in asylum including race, religion, national origin, political opinion, or membership in a particular social group. Further, whereas the immigration judge has discretion to deny the alien asylum, a grant of withholding of removal is mandatory if the alien meets the standard. Aliens who would more likely than not be tortured in their home country cannot be returned there. An asylum applicant who cannot show fear of persecution may still be deported. Therefore, the immigration judge lacks any discretion to deny a meritorious withholding of removal case. Relief must be granted as a matter of law.

Benefits of Asylum over Withholding of Removal

Withholding of removal does not carry the same benefits as asylum. First, the relief is temporary. The alien can always be removed to a prior country of residence where he or she is less likely to be tortured. Moreover, aliens granted withholding do not have the same avenue to permanent resident status awarded to asylees, nor can their family members derive benefits from their grant of relief. While aliens that have been granted asylum can file for permanent residence after one year and bring family members to the United States by applying for their derivative status, those granted withholding have no such rights. Accordingly, applicants often prefer to be granted asylum rather than withholding of removal. An alien can apply for asylum or withholding of removal using the same Form I-589. 

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