What Is Withholding of Removal & Who Is Eligible to Apply?

Who Can Apply for Withholding of Removal?

An alien applying for asylum can also apply for withholding of removal at the same time. Withholding of removal is an alternative to the asylum for a foreigner who fears to return to his home country. However, it should be noted that the grant of the withholding of removal does not result in the same benefits arising from the grant of asylum.

What Is the Immigration and Nationality Act?

Withholding of removal is a remedy available to an alien who cannot go back to his home country because of a threat to his life or freedom. Under the Immigration and Nationality Act, an alien cannot be removed to a country if the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion. INA § 214(b)(3)(A).

Who Is Eligible for Withholding of Removal?

An alien is eligible for withholding of removal if he is able to establish that his life or freedom would be threatened because of one of the statutory grounds if he is removed to his home country. The alien will meet his burden of proof if he is able to show that it is more likely than not that his life or freedom would be threatened if he is removed to his home country. The “more likely than not” standard for withholding of removal is more difficult to meet than the standard for showing fear of persecution for asylum applicants.

What Is the Standard for Granting Withholding of Removal?

However, if the grant of asylum is always discretionary, the immigration judge must grant withholding of removal if the applicant meets the “more likely than not” standard. The credible testimony of the applicant may be sufficient to meet his burden of proof. If the applicant is able to show past persecution in his home country there will be a presumption that the applicant’s life or freedom will be threatened if the applicant is removed to that country.

The Application for Withholding of Removal

The application for asylum also constitutes an application for withholding of removal, and the alien does not have to submit a separate application for that purpose. However, it should be noted that in contrast to asylum, the withholding of removal may be granted only by the immigration judge. Furthermore, the withholding of removal may be granted even though the alien has filed the application one year after his arrival to the United States. Withholding of removal is not available to an alien if:

1. The alien ordered, incited, assisted, or otherwise participated in the prosecution 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. INA § 241(b)(3)(B)
5. It should be noted that although the alien who was granted withholding of removal can stay and work in the United States he does not have all the benefits that arise from the grant of asylum. Particularly, withholding of removal does not result in permanent resident status, does not provide derivative benefits for the spouse or children, and the alien cannot leave the United States. Basically, the grant of withholding of removal allows the alien to stay and work in the United States without additional immigration benefits.

To sum up, withholding of removal is an option for aliens fearing to return to their home country if the alien is not eligible for asylum. Although the grant of withholding of removal does not result in permanent resident status an alien can legally stay and work in the United States without the fear of being removed to his home country.

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