Withholding of Removal

Withholding of Removal

Withholding of removal is a form of relief from removal similar to asylum in that it provides protection for persons fleeing persecution. Persecution is mistreatment or victimization because of race, political, or religious beliefs. Applicants often file an application for both asylum and withholding of removal at the same time on form I-589.

There are a few differences in definition and requirements for withholding or removal and asylum petition and proceedings. Among those differences is the fact that withholding can’t be granted by an asylum officer, it can only be granted by an immigration judge. However, like asylum, there must be a threat to life or freedom on account of:

  • Race
  • Religion
  • Nationality
  • Political opinion
  • Membership in a particular social group

Withholding of removal is a mandatory form of relief, whereas asylum is discretionary. This means that asylum will only be granted upon a finding that the applicant is deserving. Withholding is mandatory, which means that it MUST be granted if eligibility is proven.

Advantages and Disadvantages

Withholding of removal grants:

  • Employment authorization in the United States upon approval of your application.

Withholding of removal under the Immigration and Nationality Act does not:

  • Provide relief for eligible family members in the United States.
  • Provide the ability to petition to bring eligible family members to the United States.
  • Lead to lawful permanent residence or citizenship.
  • Allow you to travel outside the U.S. and return.

The Well-Founded Fear Standard

The main difference is that withholding of removal has a higher standard of proof than asylum. Meaning that it requires more in depth evidence that the applicant should be granted protection from a threat of persecution. Asylum applicants must prove a well-founded fear of persecution, whereas applicants for withholding of removal must prove that they face a threat to life or freedom by a clear probability standard.

The following is the criteria for a well-founded fear and establishes that the applicant possesses:

  • Possession – the applicant possesses a characteristic that the prosecutor seeks inflict mistreatment upon.
  • Awareness – the prosecutor is aware or will become aware that the applicant possesses this characteristic.
  • Capability – the prosecutor has the capability to persecute the applicant.
  • Inclination – the prosecutor has the inclination or desire to persecute the applicant.

The Clear Probability Standard

The clear probability standard means that it is more likely than not that the person will be subject to harm. It is a more difficult standard to meet than the well-founded fear standard. There must be better than a 50% chance of a threat to the applicant’s well-being.

Eligibility For Withholding of Removal

Generally, the burden of proof is on the applicant to show that his life or freedom would be threatened in the proposed country of removal on account of race, religion, nationality, membership in a particular social group, or political opinion. The evidence shall be evaluated as follows:

A. The applicant’s life or freedom will be deemed threatened if it is evident that he or she would be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion.

B. If the applicant is determined to have suffered persecution in the past, it will be presumed that his or her life or freedom would be threatened on return to that country. An abundance of evidence needs to be presented to establish that conditions in the country of persecution have changed to such an extent that it is no longer likely that the applicant’s life or freedom is in jeopardy.

C. In evaluating whether the applicant has sustained the burden of proving that his life or freedom would be threatened, the officer or judge hearing the case will not require the applicant to provide evidence that he would be singled out individually for such persecution if:

  • The applicant establishes that there is a pattern or practice in the country of proposed removal of persecution of a group of persons similarly situated to the applicant on account of race, religion, nationality, membership in a particular social group, or political opinion.
  • The applicant establishes his own involvement and identification with such group of persons that makes it more likely that the applicant’s life or freedom would be threatened upon return.

Ineligibility For Withholding of Removal

Foreign national applicants are not eligible for withholding of removal if he or she is a persecutor or has been convicted of a particularly serious crime. The courts will determine if the crime is serious by evaluating:

  1. The nature of the crime – for example, whether it was property crime or a criminal offense against a person or society.
  2. The circumstances surrounding the crime – for example, was it self-defense?
  3. The length of the crimes sentence.
  4. Whether the crime indicates possible danger to the U.S. or community.

The attorneys at SGM Law Group can assist you in determining whether you qualify for withholding of removal and prepare and file the necessary application with supporting evidence on your behalf. For additional information on how we can help you, contact us by filling out this contact form to schedule a consultation.