WITHHOLDING OF REMOVAL
In
this continuation of the Instruction Series on various forms of “Relief from
Removal,” Immigration Attorney Godfrey Muwonge, Esq. examines the Deportation Defense
known as Withholding of Removal available in US Immigration Court Removal
Proceedings.
One of the most-important forms of
relief from removal/deportation that a non-citizen (a respondent in removal
proceedings) can get from an immigration judge is known as withholding of removal.
It is a product of Article 33 of the 1951 United Nations Refugee Convention.
Under it, contracting states such as the United States agree not to refouler or return an individual to a
country where his or her life would be threatened. The respondent in removal
proceedings may apply for this form of relief by demonstrating that it is more
likely than not that he or she faces persecution on account of race,
nationality, religion, membership in a particular social group, or religion. The
standard “more likely than not” has been characterized as 51% by some courts,
but one imagines that anything over 50% is more likely than not to happen.
Withholding is a stiffer standard than
its counterpart, asylum. For asylum, courts have held that demonstrating a 10%
chance that persecution will occur and is sufficient to qualify an applicant
for the relief. This “10%” formulation comes out of a 1987 ruling by the United
States Supreme Court known as INS v. Cardoza-Fonseca.
In that case, the court did not say “10%” chance, it said that even a one in
ten chance of an event occurring does not preclude the event’s occurring. The
court was distinguishing the standards for asylum and the one for withholding
which the Immigration Service was insisting had to be imposed upon applicants
for asylum instead of the lower standard. The court held that the lower standard
for asylum to be imposed was “a well-founded fear of persecution” which
translated to “a reasonable likelihood” that persecution will occur, which is
not the “more likely than not” or 50%—plus standard.
At any rate, withholding is clearly more
difficult to get but, unlike asylum which is discretionary—that is the Immigration
Judge grants it as a matter of grace—it is mandatory, once the respondent shows
that persecution on one of the protected grounds is more likely than not. In addition,
while asylum requires that its applicant prove that he or she filed his or her
application within a year of arrival (with a couple of exceptions), withholding
has no time limit as to filing an application for it.
Withholding
only prevents the Government from returning the respondent to his or her home
country or to the country where his or her life would be threatened. This means,
although this commenter has not experienced it, that if the Government can find
a third country willing to take the respondent it can remove the respondent to
that third country. In addition, while asylum affords the asylee who is
successful in obtaining it to become a lawful permanent resident (LPR) or get a
green card and eventually become a naturalized citizen, and bring family to the
United States or, if family is here already, to extend the benefit to immediate
family members (spouse and children under 21), withholding affords the grantee
no such benefits. The respondent granted the benefit gets to apply for and
receive a work permit but that is about it.
If,
however, the respondent with withholding as relief qualifies for a green card
through other means—family, work and so on—that respondent can approach the
Office of Chief Counsel of the Department of Homeland Security
(DHS)/Immigration and Customs Enforcement (ICE) and request that that office
join in a motion to reopen removal proceedings and to vacate the removal order
and terminate proceedings to permit the respondent to either adjust status to
permanent resident here in the United States, or to proceed overseas to an
American consulate for green card processing. We shall see the difference of those
two categories of processing in a future instructional comment in this series.
Withholding of removal is NOT available
to a respondent:
1.
Who
has persecuted others; or
2.
Who
has been convicted of a particularly serious crime.
A particularly serious crime includes
aggravated felonies, especially those that carry a sentence of five years or
longer, and it is irrelevant whether the sentence was imposed, stayed or
suspended. The definition of “aggravated felony” that Congress provided as of
September 30, 1996 has 21 subdivisions. To understand what they are, one should
consult an experienced immigration attorney regarding the meaning of and “particularly
serious crime,” within the context of withholding.
This is a comment on immigration law and
it is not legal advice. One seeking legal advice should consult an immigration
lawyer that is versed in the particular matter about which legal advice is
sought.
*** Godfrey
Y. Muwonge is an immigration attorney in Milwaukee, Wisconsin. Education:
Marquette University Law School, Juris Doctor
(1997). Author of “Immigration Reform: We Can Do It, If We Apply Our Founders'
True Ideals, Revised Edition” (Univ. Press of America, 2010), which was
selected as one of top-10 Books that Drive the Debate (2009) by U.S. Chamber of
Commerce's National Chamber Foundation. See https://www.amazon.com/Immigration-Reform-Apply-Founders-Ideals-ebook/dp/B00D79W838
References
Godfrey Muwonge is an attorney in Milwaukee, Wisconsin. Author of “Immigration Reform: We Can Do It, If We Apply Our Founders' True Ideals, Revised Edition” (Univ. Press of America, 2010), which was selected as one of top-10 Books that Drive the Debate (2009) by U.S. Chamber of Commerce's National Chamber Foundation. See https://www.amazon.com/Immigration-Reform-Apply-Founders-Ideals-ebook/dp/B00D79W838
