“Withholding of removal” is a mandatory form of protection from deportation for many refugees. It prohibits the U.S. government from deporting a non-citizen to a country in which the immigrant’s life would be in danger because of his or her:
- Political opinion, or
- Membership in a particular social group.1
Withholding of removal is not available, however, to a refugee who has been convicted of an aggravated felony or another offense judged to be a “particularly serious crime.”
To help you better understand withholding of removal, our California immigration lawyers discuss the following, below:
- 1. What is withholding of removal?
- 2. Who qualifies for withholding of removal?
- 3. The legal definition of “particularly serious crime”
- 4. How do I prove I would be persecuted if deported?
- 5. Is withholding of removal permanent?
- 6. Other limitations on withholding of removal
- 7. Can I apply for both asylum and withholding of removal?
- 8. If I am ineligible for withholding, is there any other relief I may qualify for?
1. What is withholding of removal?
Withholding of removal is a form of relief for refugees in the United States. “Removal” means the same thing as deportation. If removal is “withheld,” it means the refugee will not be deported.
Withholding of removal is similar to asylum relief, but with several key differences:
- Withholding of removal has a higher standard of proof to qualify. The alien must prove that it is more likely than not he or she would be persecuted by the government (or a group the government cannot control) if returned to his or her country of origin;
- Withholding of removal is mandatory if the alien qualifies. This makes it available to immigrants who have been convicted of non-serious criminal offenses (such as petty theft);
- Unlike asylum, withholding of removal does not have a one-year filing deadline. The immigrant can petition for withholding of removal at any time before deportation.
2. Who qualifies for withholding of removal?
Any non-U.S. citizens who can establish a clear probability of persecution in their home country can petition for withholding of removal, unless one of the following applies:
- The alien has been convicted of a “particularly serious crime”;
- The alien has ever participated in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing;
- The alien has participated in the persecution of an individual based on race, religion, nationality, membership in a particular social group, or political opinion;
- The U.S. has serious reasons to believe that the alien committed a serious nonpolitical crime outside the United States; or
- There are reasonable grounds to believe that the alien is a danger to the security of the United States.2
3. The legal definition of “particularly serious crime”
An alien is not eligible for withholding of removal purpose if he/she has been convicted of:
- One or more aggravated felonies resulting in sentence(s) of 5 or more years of imprisonment in the aggregate,3 or
- Any other crime an immigration judge reasonably deems particularly serious.4
4. How do I prove I would be persecuted if deported?
The immigrant bears the burden of proof to establish that his or her life or freedom would be threatened in the proposed country of removal.5
Evidence of such a threat may be established by:
- Past threat to life or freedom, or
- Future threat to life or freedom.
The testimony of the applicant, if credible, may be enough, in some cases, to sustain the burden of proof without additional evidence.
4.1. Past threat to life or freedom
If the applicant has suffered persecution in the past, it shall be presumed that the applicant’s life or freedom would be threatened in the future on the same basis — unless an asylum officer or immigration judge finds by a preponderance of the evidence that:
- There has been a fundamental change in circumstances, or
- The immigrant could avoid the threat by relocating to another part of the proposed country of removal and, under all the circumstances, it would be reasonable to expect the immigrant to do so.
4.2. Future threat to life or freedom
An applicant may also qualify for withholding of removal if he /she can establish that it is more likely than not that he or she would be persecuted upon removal to that country.
The immigrant will still be subject to removal, however, if he / she could avoid the threat by relocating to another part of the proposed country of removal and, under all the circumstances, it would be reasonable to expect the immigrant to do so.
The alien does not necessarily need to prove that he or she would be singled out individually for such persecution. Rather the alien need only establish that:
- There is a pattern or practice of persecution of a group of persons similarly situated to the applicant in the country of removal; and
- He or she is a member of such a group and it is more likely than not that his or her life or freedom would be threatened upon return to that country.
4.3. Reasonableness of internal relocation
In determining whether it would be reasonable for an alien to relocate to another part of the proposed country of removal, the immigration judge will consider:
- Whether the alien would face other serious harm in the place of suggested relocation;
- Any ongoing civil strife within the country;
- Administrative, economic, or judicial infrastructure;
- Geographical limitations; and
- Social and cultural constraints, such as age, gender, health, and social and familial ties.
If the likely persecutor is a government or is government-sponsored, or the applicant has established past persecution, the U.S. must establish by a preponderance of the evidence that it would be reasonable for the applicant to relocate.
Otherwise, it is the applicant who has the burden of establishing that it would not be reasonable for him or her to relocate,
5. Is withholding of removal permanent?
Withholding of removal does not confer permanent immigration status on the applicant. The DHS may reopen the immigrant’s case and a judge may terminate withholding of removal once there is no longer a likelihood of persecution in the individual’s home country.6
6. Other limitations on withholding of removal
Although withholding of removal relief is mandatory for an immigrant who qualifies, it does not confer the same protections as asylum.
Limitations on withholding of removal include:
- Relief is country-specific. Although an immigrant will not be removed to any particular country (or countries) where persecution is likely, he or she can be removed to a safe third country;
- Relief applies to the at-risk immigrant only. Spouses and children do not get the benefit (although they might be entitled, separately, to asylum based on their own applications);
- Withholding of removal does not provide a path to legal permanent residency (green card) or to naturalization as a U.S. citizen;
- An alien who receives withholding of removal cannot travel outside the United States and then return; and
- An alien who receives withholding of removal can work only if he or she holds a valid employment-authorization document.
7. Can I apply for both asylum and withholding of removal?
A non-citizen seeking refuge in the U.S. can request more than one form of relief. As a result, withholding of removal is often petitioned for at the same time as asylum and CAT relief (discuss below).
If an immigrant qualifies for more than one form of relief, he or she will be granted whichever is most favorable to the immigrant.
8. If I am ineligible for withholding, is there any other relief I may qualify for?
An alien who does not qualify for withholding of removal under U.S. law may, nevertheless, qualify for withholding of removal under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). Relief against removal under CAT is similar to withholding of removal.
At risk of deportation? Call us for help…
If you or someone you know is facing deportation and is afraid of persecution, we invite you to contact us for a free consultation.
Our Los Angeles, California immigration lawyers can help you apply for asylum, withholding of removal or CAT protection.
We can also advise you on the immigration consequences of a criminal conviction before you accept a plea deal.
To speak to a lawyer about your case, call us or fill out the form on this page
- Immigration and Nationality Act (“INA”) §241(b)(3)(B) 8 CFR §208.16.
- 8 USC §1158(b)(2).
- 8 USC §1231(b)(3)(B).
- See, e.g., Matter of N–A–M–, 24 I&N Dec. 336 (BIA 2007), aff’d, N–A–M– v. Holder, 587 F.3d 1052 (10th Cir. 2009), cert. denied, 131 S. Ct. 898 (2011).]
- 8 CFR 208.16, endnote 1.
- 8 CFR. §1208.17(b).