Introduction: Statutory Withholding of Removal

An alien who is subject to removal proceedings may seek withholding of removal. Withholding of removal allows for an alien to seek relief from removal if his or her life or freedom would be threatened in his or her home country on account of race, religion, nationality, membership in a particular social group, or political opinion. Although withholding of removal and asylum [see article] are distinct forms of immigration relief, an alien who files for asylum in removal proceedings will automatically be considered for withholding of removal as well. Through the withholding of removal process, the alien may be granted relief through the statutory provisions found in section 241(b)(3) of the Immigration and Nationality Act (INA) or through the Convention Against Torture (either withholding of removal or deferral of removal). Claims for statutory withholding of removal and withholding of removal under the Convention Against Torture may be considered in conjunction. In this article, we will discuss the rules surrounding eligibility for statutory withholding of removal.

Please read our other articles on withholding of removal to learn more:

Applying for Withholding of Removal [see article]
Eligibility for Withholding of Removal and Deferral of Removal Under the Convention Against Torture [see article]
Administrative and Judicial Precedent Regarding Denial Grounds for Withholding of Removal [see article]

Statutory Withholding of Removal

Under section 241(b)(3)(A) of the INA, the Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of his or her:

Race;
Religion;
Nationality;
Membership in a particular social group; or
Political opinion.

Note that the language of section 241(b)(3)(A) explicitly prohibits the Attorney General from removing an alien to a country where his life or freedom would be threatened on account of one of the five above classifications. However, the statute for withholding is distinct from the statute for asylum in that it only covers prospective threats to the alien’s life or freedom. Under the language of the statute, the fact that the alien was once persecuted in the country to which he or she would be removed to will not suffice to establish eligibility for statutory withholding of removal if the Attorney General does not determine that there is a prospective threat to the alien’s life or freedom in the home country on account of one of the five grounds listed above.

Denial Grounds (under statute)

Notwithstanding section 241(b)(3)(A), an alien will be ineligible for statutory withholding of removal if he or she falls within certain categories. First, under section 241(b)(3)(B), an alien who is deportable under section 237(a)(4)(D) will not be eligible for statutory withholding of removal. Section 237(a)(4)(D) renders deportable aliens who:

1. Participated in Nazi persecutions;
2. Ordered, incited, assisted, or otherwise participated in genocide (as defined by 18 U.S.C. 1091(a)); or
3. Committed, ordered, incited, assisted, or otherwise participated in the commission of any act of torture (as defined in 18 U.S.C. 2340) or any extrajudicial killing under the color of foreign law (as defined in section 3(a) of the Torture Victim Protection Act of 1991 (28 U.S.C. 1350)).

Furthermore, under section 241(b)(3)(B), if the Attorney General determines that the alien is described by one of the following clauses, the alien will be ineligible for statutory withholding of removal notwithstanding section 241(b)(3)(A):

i. the alien ordered, incited, assisted, or otherwise participated in the persecution of an individual because of the individual’s race, religion, nationality, membership in a particular social group, or political opinion;
ii. the alien, having been convicted by final judgment of a particularly serious crime is a danger to the community of the United States;
iii. there are serious reasons to believe that the alien committed a serious nonpolitical crime outside the United States before the alien arrived in the United States; or
iv. there are reasonable grounds to believe that the alien is a danger to the security of the United States.

The statute goes on to note that for the purpose of clause (ii) (see above), “an alien who has been convicted of an aggravated felony [see article] (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime.” However, the Attorney General may still, in his or her discretion, determine that a conviction (or convictions) was for a “particularly serious crime” even if the aggregate term of imprisonment was less than 5 years. For the purpose of clause (iv), an alien who is deportable under section 237(a)(4)(B) for terrorist activities “shall be considered to be an alien with respect to whom there are reasonable grounds for regarding as a danger to the security of the United States.”

To learn about administrative and judicial precedent regarding the denial grounds for withholding of removal, please see our full article [see article].

Burden of Proof (under statute)

Under section 241(b)(3)(C), the burden of proof for demonstrating that an alien qualifies for statutory withholding of removal under section 241(b)(3)(A) resides with the alien. The statute instructs the trier of fact in a given case to make credibility determinations in accordance with the provisions for asylum determinations found in sections 208(b)(1)(B)(i)-(ii) of the INA. In short, this means that the trier of the fact must determine, in the totality of the circumstances, whether he or she finds the testimony of the applicant credible in light of all of the available evidence.

Implementing Regulations for Withholding of Removal

The provisions for statutory withholding of removal are implemented through regulations found in 8 C.F.R. 208.16. Additionally, the regulation contains provisions for withholding of removal under the Convention Against Torture [see article].

Jurisdiction

Under 8 C.F.R. 208.16(a), an asylum officer may not consider withholding of removal claims (either statutory or under the Convention Against Torture). This is because withholding of removal is only available as a defense in exclusion, deportation, or removal proceedings. In such proceedings, the regulation states that “an immigration judge may adjudicate both an asylum claim and a request for withholding of removal whether or not asylum is granted.”

Burden of Proof (under regulations)

Under 8 C.F.R. 208.16(b), the burden of proof is on the applicant for withholding of removal to establish eligibility for withholding under section 241(b)(3) of the INA. The regulation states specifically that the testimony of the applicant may sustain the burden of proof without corroboration provided that the testimony is found to be credible. The regulations go on to discuss how evidence shall be evaluated in withholding of removal applications.

1. Past threat to life or freedom (8 C.F.R. 208.16(b)(1))

Under 8 C.F.R. 208.16(b)(1)(i), if it is determined that the applicant suffered past persecution in the country to which he or she would be removed on account of race, religion, nationality, membership in a particular social group, or political opinion, it shall be presumed that the applicant’s life or freedom would be threatened in the future in that country on account of the basis of the original claim. However, as we noted earlier, eligibility for withholding of removal relies upon prospective threats to the life or freedom of the applicant. Accordingly, the regulation lists circumstances in which the presumption of future threats to the applicant’s life or freedom based upon past persecution may be rebutted (paraphrasing):

A. There has been a “fundamental change in circumstances” such that the applicant’s life or freedom would not be threatened based on one of the five grounds upon the applicant’s removal to the country in which he or she suffered persecution in the past; or
B. The applicant could avoid a future threat to his life or freedom by relocating to a different part of the proposed country of removal, and based upon all of the circumstances, it would be reasonable to expect the applicant to do so.

Under 8 C.F.R. 208.16(1)(B)(ii), the United States Citizenship and Immigration Services (USCIS) has the burden of rebutting the presumption of future persecution if the applicant demonstrates that he or she was previously persecuted in the proposed country in one of the five categories. However, subclause (iii) of the same provision states that the applicant will have the burden of demonstrating that he or she would face a future threat to life or freedom that is unrelated to the past persecution (e.g., if it is demonstrated that the applicant had been persecuted on account of political opinion but argues that a future fear of persecution would be on account of membership in a particular social group).

2. Future threat to life or freedom (8 C.F.R. 208.16(b)(2))

Under 8 C.F.R. 208.16(b)(2), an applicant may demonstrate eligibility for withholding of removal even if he or she was not persecuted in the country to which he or she would be removed in the past. In order to do so, the applicant must demonstrate that it is more likely than not that he or she would be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion upon removal to that country. However, the applicant will not be able to sustain his or her burden if the asylum officer or immigration judge finds that the applicant could avoid the future threat to his or her life or freedom by relocating to another part of the proposed country of removal so long as, under the circumstances, it would be reasonable to expect the applicant to do so. The regulation states that the applicant shall not be required to demonstrate that he or she would be singled out for persecution if the immigration judge finds that:

i. The applicant establishes that there exists in the country a pattern or practice of persecution of a group of persons similarly situated to the applicant on the ground that the applicant fears future persecution; and
ii. The applicant establishes that, based on his or her inclusion in and identification with that group of persons, it is more likely than not that his or her life or freedom would be threatened upon return to the home country.

If the immigration judge does not find both of the above points, the applicant would be required to demonstrate that he or she would more likely than not be singled out for persecution based upon his or her inclusion in one of the five categories.

3. Reasonableness of internal relocation (8 C.F.R. 208.16(b)(3))

An alien will be ineligible for withholding of removal if it is determined that he or she could avoid the future persecution that forms the basis of his or her application by relocating to a different part of the country to which he or she would be removed. However, in order for the applicant to be found to be ineligible for withholding of removal on this basis, it must be found that it would be reasonable, in light of all of the circumstances, to expect the applicant to relocate to a part of the country where he or she would not be persecuted. 8 C.F.R. 208.16(b)(3) provides guidance on determining whether it is reasonable to expect an applicant to relocate in a specific case. The regulation instructs adjudicators to consider, among other things:

Whether the applicant would face other serious harm in the place of suggested relocation;
Ongoing civil strife within the country;
Administrative, economic, or judicial infrastructure;
Geographical limitations; and
Social and cultural restraints (e.g., age, gender, health, and social and familial ties).

The regulation notes that whether a given factor is relevant depends on the specific circumstances of the case in question. Furthermore, satisfying or not satisfying any one factor or set of factors is “not necessarily determinative of whether it would be reasonable for the applicant to relocate.

Under 8 C.F.R. 208.16(b)(3)(i), if the applicant did not establish past persecution, he or she will bear the burden of demonstrating that it would be unreasonable for him or her to relocate. However, the applicant will not have the burden if the persecutor is a government or if the persecutor government-sponsored. Under 8 C.F.R. 208.16(b)(3)(ii), if the persecutor is a government or government-sponsored or if the applicant has suffered persecution in the pass, there shall be a presumption that internal relocation would be unreasonable. However, the USCIS may rebut this presumption by establishing by a preponderance of evidence in light of all of the circumstances that it would be reasonable to expect the applicant to relocate.

Denial Grounds (under regulations)

Under 8 C.F.R. 208.16(d)(2), an alien will be ineligible for withholding of removal if he or she falls under one of the mandatory denial grounds found in section 241(b)(3) of the INA. If the evidence indicates that the applicant is subject to a mandatory denial ground, the burden will be on the applicant to demonstrate by a preponderance of the evidence that the mandatory denial ground does not apply.

Under 8 C.F.R. 208.16(d)(2), the old INA section 243(h)(2) applies (instead of section 241(b)(3)) to withholding of deportation proceedings commenced prior to April 1, 1997. 8 C.F.R. 208.16(d)(3) explains that an alien convicted of aggravated felony or felonies where the applicant was sentenced to at least 5 years’ imprisonment was considered to be a particularly serious crime and a mandatory bar to withholding, but section 243(h) gave the Attorney General discretionary authority to waive the bar if the aggregate sentence was less than 5 years if the waiver was deemed to be necessary to ensure compliance with the Protocol Relating to the Status of Refugees, Jan. 31, 1967, T.I.A.S. No. 6577.

Reconsideration of Discretionary Denial of Asylum

Withholding of removal applies only to the applicant and does not extend any benefits to derivatives. Under 8 C.F.R. 208.16(e), if an applicant is granted withholding after previously having been denied asylum solely in the exercise of discretion, the denial of asylum shall be reconsidered if the applicant has a spouse or minor children who would be eligible to follow to join if the applicant was granted asylum. In reconsidering the discretionary denial of asylum, adjudicators must consider the reasons for the denial and any reasonable alternatives available to the applicant for family reunification (such as reunification in a third country).

Removal to a Third Country

Under 8 C.F.R. 208.16(f), an alien who is granted withholding of removal may be removed to a third country other than the country to which removal was withheld.

Conclusion: Statutory Withholding of Removal

Statutory withholding of removal allows certain aliens who are subject to a final order of removal to have their removal withheld on account of fear of persecution in the country to which they would otherwise be removed. Withholding of removal, whether under statute or under the Convention Against Torture, may not be granted unless the alien is subject to a final order of removal. Unlike asylum, withholding of removal does no confer a path to permanent residency or derivative benefits. Please see our article on applying for withholding of removal to learn about the application process and what happens after withholding is granted or denied.

Resources and Materials:

Kurzban, Ira J. Kurzban’s Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 665-73, Print. Treatises & Primers.