• What is Withholding of Removal Status?
  • August 15, 2016 | Author: Alexander Joseph Segal
  • Law Firm: The Law Offices of Grinberg & Segal, PLLC - New York Office
  • What is withholding of removal?

    Withholding of removal is a form of relief from removal that prevents an alien against whom a final order of removal has been entered from being removed to a specific country. Withholding of removal does not confer a withholding of removal status. It merely prevents an alien from being removed to a specific country and does not entitle an alien to immigration benefits. An alien who has been granted withholding may be removed to a third country to which he or she would not be likely to be persecuted or tortured.

    Two Distinct Forms of Withholding of Removal

    1.     Statutory withholding of removal allows an alien to seek withholding from a country where he or she presents evidence indicating that it is more likely than not that he or she would be persecuted on the basis of one of five enumerated grounds. Unlike asylum, the alien may not rely upon past persecution to demonstrate eligibility if he or she cannot demonstrate likely persecution in the future.

    2.     Withholding of removal under the Convention Against Torture (CAT) allows an alien to seek relief by presenting evidence that indicates it is more likely than not that he or she would be tortured in the country of intended removal.

    If an alien is falls under a statutory mandatory denial ground for withholding of removal, he or she will be ineligible for both statutory withholding of removal and withholding of removal under CAT. However, if such an alien demonstrates that it is more likely than not that he or she would be tortured in the country of intended removal, the alien shall be granted deferral of removal to that country instead of withholding of removal.

    Applying for Withholding of Removal

    If an alien in regular removal proceedings applies for asylum, his or her application will also be considered for withholding of removal. If an alien makes an affirmative asylum application and is never placed in removal proceedings, the application will not be considered for withholding of removal. While asylum can be denied on discretionary grounds, an alien must be granted withholding of removal if he or she satisfies the requisite burden of proof.

    The process for seeking withholding of removal is slightly different for an alien who is subject to a final order of administrative removal or administrative removal. In such a case, the alien must establish a “reasonable fear” of persecution or torture in in an interview with an asylum officer. If the alien is subject to expedited removal proceedings, he or she must establish a “credible fear” of persecution or torture in an interview with an asylum officer.

    Conclusion


    Withholding prevents an alien from being removed to a country where he or she would likely be persecuted or tortured. An alien in removal proceedings should consult with an experienced attorney for guidance in pursuing defense from removal. If appropriate, an experienced immigration attorney can help an alien pursue asylum and/or withholding of removal.