Applying for Withholding of Removal in Section 240 Removal Proceedings

 

Introduction to Applying for Withholding of Removal

Withholding of RemovalCertain aliens in removal proceedings may be eligible for relief from removal in the form of an order of withholding of removal. There are two types of withholding of removal. The first, found in section 241(b)(3) of the Immigration and Nationality Act (INA), prohibits the Attorney General from removing an alien to a country where the Attorney General has determined that the alien's life or freedom would be threatened in certain statutorily enumerated ways.1 The second, found in 8 C.F.R. 208.16(c), prohibits the removal of an alien to a country where it has been determined that the alien would more likely than not be tortured. Withholding of removal may be granted under section 241(b)(3) of the INA or under the Convention Against Torture (which also includes the related deferral of removal form of relief).

An applicant who files an application for asylum shall have his or her application also considered for withholding of removal if the applicant is already in removal proceedings. An Immigration Judge may only grant withholding of removal once the alien has been issued a final order of removal. However, there are special situations for when an alien is ordered removed under section 238(b) [see article] or section 241(a)(5) [see article] (the statutes describe expedited removal and reinstatement of removal respectively), where the alien may only be granted relief in the form of withholding of removal. In such cases, the applicant is granted a reasonable fear interview with an asylum officer before a potential hearing before an immigration judge for a final determination on the application. Aliens ordered removed under section 235(c) [see article] (the statute describes summary removal on security and related grounds) may have an application for relief under the Convention Against Torture considered by an asylum officer (but not by an immigration judge). We discuss withholding of removal for aliens ordered removed under sections 235(c), 238(b) and 241(a)(5) in a separate article [see article].

In this article, we will examine the rules for seeking withholding of removal in regular section 240 removal proceedings. To learn more about a variety of issues relating to withholding of removal, please see the following list of articles:

  • Eligibility for Statutory Withholding of Removal [see article]
  • Eligibility for Withholding of Removal and Deferral Removal under the Convention Against Torture [see article]
  • Issues for Aliens who have been Granted Deferral of Removal [see article]
  • Mandatory Denial Grounds for Withholding of Removal [see article]

Relationship Between Asylum and Withholding Applications

Applications for asylum and for statutory withholding of removal are filed on the Form I-589, Application for Asylum and for Withholding of Removal. Under 8 C.F.R. 208.3(b), an application for asylum “shall be deemed to constitute at the same time an application for withholding of removal.” If the application is being filed with respect to exclusion proceedings commenced before April 1, 1997, it shall instead “be deemed to constitute an application for withholding of deportation under [old] section 243(h).” To this effect, see also the Matter of Castellon, 17 I&N Dec. 616 (BIA 1981) [PDF version]. This guidance is repeated in the form instructions for the Form I-589 [PDF version]. The form instructions explain that there is no distinct application form for withholding of removal under the Convention Against Torture. Rather, there are two ways that an alien may have his or her application for asylum and withholding of removal also considered as an application for withholding of removal or deferral of removal under the Convention Against Torture:

  1. The alien may check the box at the top of the Form I-589 indicating that he or she wants to apply for withholding of removal of under the Convention Against Torture; or
  2. The alien's eligibility for relief under the Convention Against Torture will be adjudicated if the evidence submitted with the Form I-589 otherwise indicates that the alien may be tortured in the country of removal.

Under 8 C.F.R. 208.3(b), if an alien is found to be subject to a bar to eligibility for filing for asylum under section 208(a)(2), he or she may still file a Form I-589 and have the application for withholding of removal considered. This is because the bars to eligibility for applying for asylum do not constitute bars to eligibility for applying for withholding of removal.

It is important to note that although an application for asylum and withholding of removal may be made simultaneously, they are distinct forms of relief. Asylum is a discretionary form of relief. In contrast, if an applicant sustains his or her burden for demonstrating eligibility for statutory withholding of removal (including demonstrating that he or she is not subject to any mandatory denial grounds) or withholding of removal or deferral of removal under the Convention Against Torture, the withholding or deferral of removal shall be granted. This distinction was recognized by the Board in the Matter of Pula, 19 I&N Dec. 467 (BIA 1987) [PDF version].

To learn about the asylum clock and employment authorization for those with long-pending asylum applications, please see our full article [see article].

Applying for Withholding of Removal

Because an application for withholding of removal may only be considered by an immigration judge in immigration proceedings, there are two ways an alien who filed a Form I-589 may have his or her application for withholding of removal (as distinct from asylum) considered:

  • An alien makes an affirmative asylum application by filing a Form I-589 when not in removal proceedings. The asylum officer refers the applicant to removal proceedings under 8 C.F.R. 208.14(c) and the applicant is served with a Form I-862, Notice to Appear (NTA).
  • An alien is served with a Form I-862 and files a defensive asylum application and application for withholding of removal.

As a result of the ABT Settlement Agreement [see article], an alien may lodge the Form I-589 and supporting documents with the clerk of the court for purpose of starting the asylum clock [see Memo]. 2 However, such applications must still be subsequently filed with the immigration court in order to be considered filed. Under 8 C.F.R. 208.4(c), the immigration judge may, in his or her discretion, grant the applicant permission to amend or supplement an asylum application after it has been filed with the court. However, it is best to ensure that the application is complete at the time it is filed. All information required on the Form I-589 must be provided.

Under 8 C.F.R. 1003.31(c), the immigration judge has discretion to set and extend time limits for the filing of applications and documents. If the applications and documents are not filed within the timeframe set by the immigration judge, the application will be deemed to have been waived. In the Matter of R-R-, 20 I&N Dec. 547 (BIA 1992) [PDF version], the Board held that an application for asylum and withholding of removal was correctly deemed waived because it was filed with the wrong District Director. In Mendez-Gutierrez v. Ashcroft, 340 F.3d 865 (9th Cir. 2003) [PDF version], the Ninth Circuit held that an alien may be able to reinstate an application for asylum and withholding after withdrawing the application if he or she can demonstrate prima facie eligibility for relief.

It is important to note that asylum, statutory withholding of removal, withholding of removal/deferral of removal under the Convention Against Torture are analytically distinct forms of immigration relief. This means that, if an alien is found ineligible for any of these forms of relief, it does not necessarily mean that the alien will be ineligible for all three forms of relief.

It is also important to note that, if an alien is granted withholding of removal or deferral of removal, this does not confer any derivative benefits on the alien's spouse or minor children (recognized in 8 C.F.R. 208.16(e)). However, under 8 C.F.R. 208.16(e), an alien who is granted withholding of removal and who was denied asylum solely in the exercise of discretion may have his or her denial of asylum reconsidered if the applicant has a spouse and/or minor children who would be eligible for derivative status. However, the decision to reconsider the denial of asylum is discretionary.

Withholding Application Adjudication

Under 8 C.F.R. 208.16(a), if an alien makes an affirmative asylum application, the asylum officer may not adjudicate a claim for withholding of removal. This rule is because withholding of removal is only available as a defense to removal, whereas asylum may either be granted affirmatively (not in removal proceedings) or defensively (as a defense to removal). 8 C.F.R. 1003.14(b) states: “When an Immigration Judge has jurisdiction over an underlying proceeding, sole jurisdiction over applications for asylum lie with the Immigration Judge.”

In the Matter of I-S- & C-S-, 24 Dec. 432 (BIA 2008) [PDF version], the Board of Immigration Appeals (BIA) held that, when an immigration judge issues a decision granting statutory withholding of removal without a grant of asylum, the immigration judge's decision “must include an explicit order of removal.” In 74 FR 55728, the Department of Homeland Security (DHS) discussed the precedent found in the Matter of I-S- & C-S- as follows: “A grant of withholding or deferral of removal is made with respect to an alien who has already been found by an immigration judge to be inadmissible or deportable and subject to a final order of removal.” To learn more about the Matter of I-S- & C-S-, please see our full article [see article].

In the Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014) [PDF version], an applicant for asylum or for withholding or deferral of removal is entitled to a hearing on the merits of his or her application without first having to establish prima facie (on the face) eligibility for relief. Following the Matter of Fefe, 20 I&N Dec. 116 (BIA 1989) [PDF version], this includes the opportunity to provide oral testimony and other evidence germane to the applicant's case for relief (oral testimony under oath is required under Fefe in order to establish eligibility for relief).

Frivolous Applications

Under section 208(d)(4)(A) of the INA, an alien who applies for asylum shall be notified of the consequences of filing a frivolous application for asylum. Under section 208(d)(6) of the INA, an alien who is found to have knowingly filed a frivolous application after receiving such notice “shall be permanently ineligible for any benefits” under the INA. Under 8 C.F.R. 208.20, an application is deemed to be “frivolous” if “any of its material elements is deliberately fabricated.” Furthermore, the immigration judge or the BIA must be satisfied that the applicant “has had sufficient opportunity to account for any discrepancies or implausible aspects of the claim.” Moreover, the regulation also states that, even if an application for asylum is found to be frivolous, the applicant “shall not” be precluded from seeking withholding of removal. Therefore, while an alien who is found to have made a frivolous application for asylum, he or she shall be barred from receiving any immigration benefits under the INA, including asylum, he or she may still be granted withholding of removal or deferral of removal to a specific country.

Nevertheless, an alien should never file a frivolous claim for asylum and withholding of removal. In addition to being illegal, a finding that an alien made a frivolous asylum claim will be fatal to his or her future immigration prospects. Even if an alien who is found to have made a frivolous application is granted withholding of removal or deferral of removal, he or she will be barred by statute from receiving any sort of immigration benefits in the United States. An alien who is applying for asylum and withholding of removal has an obligation under law to be completely honest in his or her application and testimony relating to the application for asylum and withholding of removal.

Under the Matter of X-M-C-, 25 I&N Dec. 322 (BIA 2010) [PDF version], an application can be found to have been frivolous even if it is withdrawn.

To learn more about issues regarding frivolous asylum applications, please see our full article [see article].

Motions to Reopen and Motions to Reconsider

Under 8 C.F.R. 1003.2, the BIA may reopen proceedings or reconsider on its own motion after a final decision has been entered in removal proceedings.

Under 8 C.F.R. 1003.2(b)(2), an alien may file a motion to reconsider a decision to deny asylum or withholding of removal “within 30 days after the mailing of the Board decision.” 8 C.F.R. 1003.2(c)(2) requires that a motion to reopen proceedings be made within 90 days of the mailing of the Board's decision. In order for a motion to reopen to be granted, 8 C.F.R. 1003.2(c)(1) requires that the motion specify the new facts that would be proven at the new hearing and submit new evidence that is both material to the alien's claim(s) for relief and was not available or could not have been discovered or presented at the former hearing.

However, under 8 C.F.R. 1003.23(b)(4), the 30 and 90 day time limits do not apply “if the basis of the motion is to apply for asylum … withholding of removal under section 241(b)(3) … or withholding of removal under the Convention Against Torture” and is based on evidence changed country conditions arising in the country of nationality (asylum) or to the country to which removal has been ordered (asylum or withholding) if (1) such evidence is material and (2) was not available or could not have been discovered or presented at the previous proceeding. If an applicant's motion to reopen is granted, the applicant must still file a separate request for a stay of removal. If the applicant's application for asylum was found to be frivolous, the applicant will be ineligible to file a motion to reconsider or to reopen. Under 8 C.F.R. 1003.3(c)(3)(ii), an alien may also apply to reopen proceedings to reapply for asylum or withholding of deportation (for proceedings that commenced before April 1, 1997) without respect to the 90-day limitation of the application is based on changed circumstances arising in the country of nationality to which the alien's deportation has been ordered.

Because an alien who has been granted withholding of removal has been issued a final order of removal, and because withholding of removal does not provide a path to permanent resident status, an alien must have his or her removal proceedings reopened in order to adjust status. Under 8 C.F.R. 203.3(c)(3)(iii), removal proceedings may be reopened without regard to the 90-day time limit if the motion to reopen is agreed upon by all parties and jointly filed. An alien may seek reopening if he or she has a basis to adjust status but for being in the United States under an order of withholding of removal. An alien who has been granted withholding of removal and believes that he or she has a basis for adjustment of status should consult with an experienced immigration attorney for an assessment of whether seeking reopening of removal proceedings is appropriate given the facts of the specific case.

Conclusion: Applying for Withholding of Removal

An alien who is in removal proceedings should immediately consult with an experienced immigration attorney. An experienced immigration attorney will be able to assess the facts of the case and determine whether there are available remedies for relief from removal. It is important to remember that an application for asylum and withholding of removal is not a catch-all remedy for any alien in removal proceeding, but rather are forms of relief that should only be sought if the facts of the alien's case suggest that he or she may be eligible. As we discussed in the article, if an alien is found to have made a frivolous application for asylum, he or she will be barred from obtaining future immigration benefits even if the alien is found to be eligible for withholding of removal.

It is important to remember that withholding of removal only prevents an alien from being removed to the country to which his or her removal was withheld. A grant of withholding of removal does not confer immigration status, derivative benefits, or a path to remaining in the United States permanently. An alien who has been granted withholding of removal may still be removed to a different country other than the country to which his or her removal was withheld. An order of withholding of removal may be revoked under certain circumstances. An alien who has been granted withholding of removal should consult with an experienced immigration attorney for an evaluation of his or her situation.

To learn about applying for withholding of removal for aliens ordered removed under sections 235(c), 238(b), and 241(a)(5) of the INA, please see our full article [see article].

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  1. Based on race, religion, nationality, membership in a particular social group, or political opinion.
  2. Memo, O'Leary, Chief Immigration Judge, EOIR, OPPM 13-02, The Asylum Clock (Dec. 2, 2013)

Resources and Materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 666, 683-84, 697, 699-702, 705, 707-10, 714-15, Print. Treatises & Primers.