Introduction: Mandatory Denial Grounds for Withholding of Removal

Section 241(b)(3)(B) of the Immigration and Nationality Act (INA) lists mandatory denial grounds for withholding of removal. An alien who would otherwise be eligible for statutory withholding of removal may be denied withholding if he or she is subject to a mandatory denial ground. An alien who is subject to a mandatory denial ground and who would otherwise be eligible for withholding of removal under the Convention Against Torture will be granted deferral of removal in lieu of withholding of removal. In this article, we will explore administrative and judicial precedent on the mandatory denial grounds. However, we have separate article addressing the particularly the serious crime mandatory denial ground found in section 241(b)(3)(B)(ii) [see article] and the serious nonpolitical crime denial ground [see article]. Before reading this article, please see our selection of articles about other issues involving withholding of removal:

Seeking Withholding of Removal [see article]
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

The mandatory grounds for denial of withholding of removal are found in section 241(b)(3)(B) of the INA. Below we will look at each of the mandatory denial grounds.

1. INA 241(b)(3)(B): Any alien who is found to be deportable under section 237(a)(4)(D) of the INA

If an alien is found to be deportable under section 237(a)(4)(D), he or she will be statutorily ineligible for withholding of removal. Section 237(a)(4)(D) renders an alien who is described in section 212(a)(3)(E)(i), (ii), or (iii) deportable. We will examine each of the three provisions covered by section 237(a)(4)(D).

Section 212(a)(3)(E)(i) covers any alien who participated in Nazi persecutions. In order to be subject to section 212(a)(3)(E)(i), the alien must have ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion under the direction of the government of Nazi Germany or under the direction of a government in an area that was under the control of Nazi Germany, established by Nazi Germany, or allied with Nazi Germany. Such persecution must have occurred between March 23, 1933, and May 8, 1945.

Section 212(a)(3)(E)(ii) covers an alien who ordered, incited, assisted, or otherwise participated in genocide as defined by 18 U.S.C. 1091(a). Genocide is defined in 18 U.S.C. 1091(a) as when a person takes any of the following actions with the specific intent to destroy (in whole or in part) a national, ethnic, racial, or religions group:

1. kills members of the group;
2. causes serious bodily injury to members of the group;
3. causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or other techniques;
4. subjects the group to conditions of life that are intended to cause the physical destruction of the group;
5. imposes measures to prevent births within the group; or transfers by force the children of the group to another group.

Section 212(a)(3)(E)(iii) covers aliens who committed, ordered, incited, or otherwise participated in the commission of: (I) any act of torture (as defined in 18 U.S.C. 2340); or (II) committed under the color of law of any foreign nation, any extrajudicial killing (as defined in section 3(a) of the Torture Victim Protection Act of 1991). 18 U.S.C. 2340 defines “torture” as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his [or her] custody or physical control.” “Extrajudicial killing” is defined as “a deliberated killing” that was not authorized by a judgment pronounced by a regularly constituted court “affording all the judicial guarantees which are recognized as indispensable by civilized people.” “Extrajudicial killing” does not encompass killing that is, under international law, lawfully carried out under the authority of a foreign nation.

2. INA 241(b)(3)(B)(i): Any alien whom the attorney general determines was a persecutor of others

If the Attorney General determines that the alien ordered, incited, assisted, or otherwise participated in the persecution of another because of the individual’s race, religion, nationality, membership in a particular social group, or political opinion, the alien will be ineligible for withholding of removal.

We discuss the persecution of others bar in the asylum context here [see section].

3. INA 241(b)(3)(B)(ii): Conviction for a particularly serious crime

If the Attorney General determines that an alien was convicted by a final judgment of a particularly serious crime and that the alien is a danger to the community of the United States, he or she will be ineligible for withholding of removal. The statute states that if the alien is found to have been convicted of an aggravated felony for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years, the alien will be found to have been convicted of a particularly serious crime. This provision does not prevent the Attorney General from finding that an alien sentenced to a lesser term of imprisonment was convicted of a particularly serious crime.

To learn about administrative and judicial precedent surrounding particularly serious crimes, please see our full article [see article].

We discuss the particularly serious crime bar in the asylum context here [see section].

4. INA 241(b)(3)(B)(iii): Serious nonpolitical crime outside the United States

If the Attorney General decides that there are serious reasons to believe an alien committed a serious nonpolitical crime outside the United States before the alien arrived in the United States, the alien will be ineligible for withholding of removal.

We discuss the serious nonpolitical crime bar in the asylum context here [see section].

5. INA 241(b)(3)(B)(iv): Danger to the security of the United States

If the Attorney General determines that there are reasonable grounds to believe that an alien is a danger to the security of the United States, the alien will be ineligible for withholding of removal. Under statute, an alien who is described by the terms of section 237(a)(4)(B) of the INA will be considered to be a danger to the security of the United States. Section 237(a)(4)(B) covers deportability for terrorist activities. Section 237(a)(4)(B) encompasses aliens described in section 212(a)(3)(B) (inadmissibility for terrorist activities) and section 212(a)(3)(F) (inadmissibility for association with terrorist organizations).

We discuss the serious security risk bar in the asylum context here [see section].

Torture

In the Matter of D-R-, 25 I&N Dec. 445 (BIA 2011) [PDF version], the Board held that, in accordance with the Matter of A-H-, 23 I&N Dec. 774 (AG 2005) (see next section), an alien may be found deportable for torture without proof of “direct personal involvement” and that “it is appropriate to look at the totality of the circumstances.” The totality of the circumstances standard was used in the Matter of Vides Casanova, 26 I&N Dec. 494 (BIA 2015) [PDF version], wherein the Board held that an alien who was in command of persons who committed acts of torture, was aware of the abuses contemporaneously, and who did nothing to stop the torture, was deportable under section 237(a)(4)(D).

Persecutor of Others Denial Ground

The Attorney General addressed the persecutor of others denial ground in the withholding context in the Matter of A-H-, 23 I&N Dec. 774 (AG 2005) [PDF version]. The case involved an alien who was the self-proclaimed leader-in-exile of a movement that was involved in the persecution of others. The Attorney General held that, in such a case, an alien may be subject to the persecutor of others denial ground if he or she is “found to have ‘incited, assisted, or otherwise participated in’ acts of persecution in the home country…” This finding may be supported by evidence that the alien (1) was instrumental in creating and sustaining ties between the political movement and the armed group and was aware of atrocities committed by the armed group; (2) used his [or her] profile and position to make public statements that encouraged those atrocities; or (3) made statements that appeared to condone the persecution without publicly disassociating himself [or herself] from the movement and the persecution, particularly if the statements appear to have resulted in an increase of the persecution. The Matter of A-H- establishes clearly that an alien need not be directly personally involved in the persecution to be subject to the denial ground.

In Miranda Alvarado v. Gonzalez, 449 F.3d 915 (9th Cir. 2006) [PDF version], the Ninth Circuit held that although Miranda Alvarado did not involve a “leader in exile,” “the more general principles enunciated in A-H concern personal culpability overall and are full consistent with our prior case law…” In Diaz-Zanatta v. Holder, 558 F.3d 450 (6th Cir. 2009) [PDF version], the Sixth Circuit found that an exception in the Matter of A-H- for “harm which may result incidentally from, or that is directly related to, the military objectives of armed conflict…” was applicable to the situation in Zanatta.

In Castaneda-Castillo v. Gonzales, 488 F.3d 17 (1st Cir. 2007) [PDF version], the First Circuit held that the alien must have had “prior or contemporaneous knowledge about the persecution” in order to trigger the persecutor bar to asylum and the mandatory denial ground to withholding. In Vukmirovic v. Ashcroft, 362 F.3d 1247 (9th Cir. 2004) [PDF version], the Ninth Circuit held that an alien who was the member of a group that persecuted others was not necessarily subject to the persecutor bar if he acted in self-defense against members of the persecuted group.

In Weng v. Holder, 562 F.3d 510 (2d Cir. 2009) [PDF version], the Second Circuit held that an alien who provided post-surgical care to victims of forced abortions was not a persecutor of others. However, in Suzhen Meng v. Holder, 770 F.3d 1071 (2d Cir. 2014) [PDF version], the Second Circuit held that an alien who had reported women who were pregnant in violation of Chinese law was a persecutor of others.

Particularly Serious Crime Denial Ground

Please see our full article on this denial ground [see article].

Serious Nonpolitical Crime Outside the United States Denial Ground

Please see our full article on this denial ground [see article].

Danger to the Security of the United States Denial Ground

In the Matter of A-H-, 23 I&N Dec. 774 (AG 2005) [PDF version], the Attorney General held that an alien who is found to be deportable for terrorism grounds under section 237(a)(4)(B) shall be denied withholding under section 241(b)(3)(B)(iv) as presenting a danger to the security of the United States. In the Matter of A-H-, the Attorney General assessed the old section 243(h)(2)(D), which used the language “reasonable grounds for regarding” an alien as a danger to the security of the United States. The Attorney General found that “[a]ny level of danger to national security is deemed unacceptable” and, therefore, that the danger need not be “serious,” “significant,” or “grave” in order for the alien to be found to be ineligible for asylum and withholding of removal. Furthermore, the Attorney General held that “any nontrivial level of danger is sufficient to trigger [the] statutory bar to withholding…” The Attorney General held that the term “’danger to the security of the United States’ is best understood to mean a risk to the Nation’s defense, foreign relations, or economic interests.” The Attorney General held that “reasonable grounds” is akin to “probable cause.” Furthermore, the reasons supporting a finding that there are reasonable grounds to believe that an alien presents a danger to the security of the United States may be satisfied by evidence that does “not meet the standards for admissibility of evidence in court proceedings.”

In Yusupov v. Att’y Gen. of the U.S., 518 F.3d 185 (3d Cir. 2008) [PDF version], the Third Circuit held that an alien is only subject to denial of withholding if the Attorney General determines that he or she “is” a danger to the security of the United States, rather than that he or she “may” be a danger. This was agreed with in Malkandi v. Mukasey, 576 F.3d 906 (9th Cir. 2009) [PDF version]. The Second Circuit held in Yusupov v. Att’y Gen. of the U.S., 650 F.3d 968 (3d Cir. 2011) [PDF version], that the mere existence of extradition proceedings and an Interpol warrant cannot form the basis of a determination that an alien is a danger to the security of the United States (in this case the warrant and proceedings had been issued by the government of Uzbekistan). The Ninth Circuit held in Khan v. Holder, 584 F.3d 773 (9th Cir. 2009) [PDF version], that any international law definitions of terrorist activities do not alter the definition of terrorist activities found in the INA.

In the Matter of S-K, 23 I&N Dec. 936 (BIA 2006) [PDF version], the Board held that an alien who provides financial support to a terrorist organization, and who knew or should have known that the organization was a terrorist organization, is ineligible for withholding. However, in the Matter of S-K-, 24 I&N Dec. 289 (AG 2007) [PDF version], the Attorney General upheld the Board’s decision in the Matter of S-K- as precedent. However, the held that an alien who is granted a waiver under section 212(d)(3)(B)(i) (for terrorist activities) and who does not have the material support bar enforced against him or her may be found to not be subject to the mandatory denial ground to withholding of removal for presenting a danger to the security of the United States. Accordingly, an alien who is charged with having provided material support to a terrorist organization may consider seeking a waiver under section 212(d)(3)(B)(i) in order to make a case for avoiding the mandatory denial ground to withholding found in section 241(b)(3)(B)(iv).

Burden of Proof

Under 8 C.F.R. 208.16(d)(2), if the evidence indicates that an alien is subject to a mandatory denial ground to withholding found in section 241(b)(3) of the INA, the burden will be on the alien to prove by a preponderance of the evidence (the weight of the evidence) that the denial ground should not apply. The applicant for withholding has a right to present rebuttal evidence see e.g., Pronsivakulchai v. Gonzalez, 461 F.3d 903 (7th Cir. 2006) [PDF version].

Under Supreme Court precedent found in INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) [PDF version], the severity of the persecution or torture that the alien would face if he or she were removed cannot be balanced against the severity of the conduct that triggered a denial ground. This is because the denial grounds are mandatory.

Conclusion: Mandatory Denial Grounds for Withholding of Removal

If an alien is found to be subject to one of the mandatory denial grounds for withholding described in section 241(b)(3) of the INA, he or she will be ineligible for withholding of removal. An alien who is seeking relief from removal through an application for asylum and withholding of removal should consult with an experienced immigration attorney immediately. An experienced immigration attorney will be able to assess the situation, determine the best options for relief, and assess, if necessary, whether it may be possible to demonstrate by the preponderance of the evidence that a mandatory denial ground to withholding of removal should not apply given the facts of the specific case.

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, 671-72, Print. Treatises & Primers.