Withholding of Removal for Aliens Subject to Administrative Removal or Reinstatement of Removal

An alien who is subject to removal regular removal proceedings under section 240 of the Immigration and Nationality Act (INA) may apply for asylum and withholding of removal (under section 241(b)(3) and/or the Convention Against Torture) to seek relief from removal. In such cases, an application for withholding of removal may only be adjudicated in immigration court and may be then reviewed by the Board of Immigration Appeals (BIA) and by federal courts. However, under special removal proceedings found in sections 235(c), 238(b), and 241(a)(5) of the INA, an alien may be issued a final order of removal without having a hearing before an immigration judge. For these special removal situations, the INA and the implementing regulations provide special means for aliens to seek withholding of removal through a “credible fear interview” in the section 235(c) context and a “reasonable fear interview” in the section 238(b) and 241(a)(5) context. In this article, we will review reasonable fear determinations for aliens ordered removed under sections 238(b) or 241(a)(5) of the INA. To learn about credible fear interviews for aliens subject to section 235(c), please see our full article [see article]. Please see our article about applying for withholding of removal to learn about how to seek withholding in regular removal proceedings [see article].

To learn about other issues relating to withholding of removal, please see our selection 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

Reasonable Fear Determinations for Aliens Subject to Expedited Removal or Reinstatement of Removal

Section 238(b) (expedited removal) and 241(a)(5) (reinstatement of removal) are removal procedures that allow the Attorney General to enter a final order of removal without going through the normal removal procedures found in section 240 of the INA. This means that an alien who is found to be subject to expedited removal or reinstatement of removal is not entitled to a hearing in immigration court. It is important to note that neither provision applies to permanent residents. In this article, we will only examine how an alien who is ordered removed under section 238(b) or 241(a)(5) may seek withholding of removal. Please see our full articles on the two removal provisions to learn about who is subject to sections 238(b) and 241(a)(5) and the removal procedures that they describe:

238(b): Expedited Removal for nonimmigrants convicted for an immigration aggravated felony [see article]
241(a)(5): Reinstatement of Removal [see article]

Although an alien who is ordered removed under section 238(b) or who has a prior removal order reinstated 241(a)(5) of the INA is not entitled to removal proceedings in immigration court, he or she may nevertheless seek withholding of removal. In order to do so, he or she must demonstrate a “reasonable fear” of persecution (under the rules in section 241(b)(3)) or torture (under 8 C.F.R. 208.17 and 208.18) in the country of intended removal. It is important to note that an alien subject to 238(b) or 241(a)(5) is only eligible to seek relief in the form of withholding of removal (under section 241(b)(3) or under the Convention Against Torture) and not in the form of asylum. In order to understand the regulation that makes this explicit, 8 C.F.R. 208.2(c), we must first look at the procedures for seeking withholding of removal for aliens subject to final orders of removal under the expedited removal and reinstatement of removal procedures.

The general regulations regarding withholding of removal applications for aliens subject to section 238(b) or 241(a)(5) are found in 8 C.F.R. 208.31, which covers “Reasonable fear of persecution or torture determinations involving” aliens who have been ordered removed under section 238(b) or 241(a)(5).

First, 8 C.F.R. 208.31(a) states that the section applies to any alien ordered removed under section 238(b) or who had a prior removal order reinstated under section 241(a)(5) and who had, in the expedited removal or reinstatement of removal process, expressed a fear of returning to his or her country of removal. Unlike normal withholding of removal applications, the United States Citizenship and Immigration Services (USCIS) “has exclusive jurisdiction to make reasonable fear determinations.” The Executive Office for Immigration Review (EOIR) has exclusive jurisdiction to review reasonable fear determinations.

Timeframe for Seeking Withholding

Under 8 C.F.R. 238.1(b)(2), expedited removal proceedings begin when an alien is issued a Notice of Intent. The Notice of Intent informs the alien of USCIS’s intent to issue a Form I-851A, Final Administrative Removal Order, without the alien having the opportunity to have a hearing before an immigration judge. Among other things, the Notice of Intent also advises the alien that he or she may request withholding of removal to a particular country if he or she fears persecution or torture in that country. Under 8 C.F.R. 238.1(c)(1), the alien will have 10 calendar days from the service of the Notice of Intent, or 13 calendar days if the service of the Notice of Intent is by mail, to file a response. If the alien intends to seek withholding of removal to a specific country, he or she must include that request in this response (note that this does not preclude the alien from also endeavoring to rebut the charges). It is worth noting that, under 8 C.F.R. 238.1(d)(iii), USCIS will have the option of converting the removal proceedings to regular removal proceedings under section 240 if it finds that the alien is “not amenable to” expedited removal.

If an alien is detained and found to be subject to reinstatement of removal, USCIS shall provide the alien with written notice under 8 C.F.R. 241.8(b) that he or she is subject to removal under the reinstatement of removal provisions. The alien shall be advised that he or she may make a written or oral statement contesting the determination. Under 8 C.F.R. 241.8(a), an alien may be removed under the reinstatement of removal provisions after it is determined that he or she was subject to a prior qualifying order removal, that the USCIS has correctly determined the alien’s identity, and that the alien unlawfully reentered the United States. However, under 8 C.F.R. 241.8(e), an alien whose prior order of removal was reinstated may not be immediately removed if he or she expressed a fear of returning to the country of intended removal. In such a case, the alien “shall be immediately referred to an asylum officer to determine whether the alien has a reasonable fear of persecution or torture…”

Under section 208.31(b), the reasonable fear determination process cannot begin until the alien is issued a Final Administrative Removal Order (for expedited removal cases) or a notice that the alien is subject to removal (for reinstatement of removal cases). This is because withholding of removal cannot be granted until the alien is issued a final order of removal [see article]. If the alien expresses a fear of persecution or torture, the regulation states that he or she “shall be referred to an asylum officer for a reasonable fear determination.” USCIS must refer an alien who expresses a fear of persecution or torture in the country of intended removal to an asylum officer, and there is no element of discretion in the decision (see “shall be referred”).

Reasonable Fear Determination Process

8 C.F.R. 208.31(c) describes the procedures for reasonable fear interviews. A reasonable fear interview shall be conducted by an asylum officer in a “non-adversarial manner.” This means that the job of the asylum officer to is to gather the facts of the alien’s claim and to make a reasonable fear determination based upon those facts.

The asylum officer is required to ensure that the alien has an understanding of the reasonable fear determination process. The alien is entitled to be represented by counsel or an accredited representative at the interview. However, such representation shall not be at the expense of the government. The alien may present evidence that is relevant to the possibility that he or she would be persecuted or tortured in the country of intended removal. The alien’s counsel or accredited representative may present a statement at the end of the interview. The asylum officer may, in his or her discretion, “place reasonable limits on the number of persons present at the interview and the length of the statement.”

If the alien cannot proceed effectively in English, and the asylum officer cannot proceed effectively in the language chosen by the alien, the asylum officer shall arrange for an interpreter to assist in conducting the interview. This assures that any alien subject to expedited removal or reinstatement of removal, regardless of English proficiency, is afforded the opportunity to state his or her claim(s) for statutory withholding of removal and/or for relief under the Convention Against Torture. However, the interpreter may not be a representative or employee of the alien’s country of nationality (or country of last habitual residence if the alien is stateless).

After the interview, the asylum officer shall review the summary of the interview with the alien and provide the alien with the opportunity to correct any errors therein. This ensures that the alien will have the opportunity to ensure that his or her claims are represented accurately in the record. After reviewing the record, the asylum officer shall create a “written record of his or her determination.” This record shall include the material facts stated by the applicant, any additional facts relied upon by the asylum officers, and the asylum officer’s determination of whether the alien has established a reasonable fear of persecution or torture. For purpose of this reasonable fear determinations by the asylum officer, the bars to eligibility for withholding of removal found in section 241(b)(3)(B) of the INA [see article] shall not be considered.

After Asylum Officer Makes a Positive Reasonable Fear Determination

Under 8 C.F.R. 208.31(e), if the asylum officer determines that the alien has a reasonable fear of persecution or torture, he or she shall inform the alien and issue the alien a Form I-863, Notice of Referral to the Immigration Judge. That will move the case to immigration court where an immigration judge will give full consideration to the alien’s request for withholding of removal. However, it is important to note that both under this regulation and under 8 C.F.R. 208.2(c)(1), the immigration judge may only consider applications for withholding of removal in such proceedings. This means that the alien will not be able to apply for asylum, cancellation of removal, or any other form of relief from removal in withholding only proceedings under 8 C.F.R. 208.2(c)(1) and 208.31(e).

The immigration judge shall review the request for withholding of removal as he or she would any other application for withholding of removal in normal removal proceedings. If the immigration judge finds that the alien is ineligible for withholding of removal, the alien may appeal the decision to the Board of Immigration Appeals (BIA).

After Asylum Officer Makes a Negative Reasonable Fear Determination

Under 8 C.F.R. 208.31(f), if the asylum officer makes a negative reasonable fear determination, the asylum officer shall inform the alien in writing and ask whether the alien wants to have an immigration judge review the decision. If the alien decides to seek review by an immigration judge, he or she must indicate such on the Form I-898, Record of Negative Reasonable Fear Finding and Request for Review by Immigration Judge.

Under 8 C.F.R. 208.31(g), if the alien requests review of the negative reasonable fear determination, the asylum officer shall serve him or her with a Form I-863, thus referring the case to immigration court. The regulation states that, absent “exceptional circumstances,” the immigration judge shall conduct the review of the asylum officer’s negative reasonable fear determination within 10 days of the date on which the alien was served with a Form I-863.

Under 8 C.F.R. 208.31(g)(1), if the immigration judge concurs with the asylum officer’s negative reasonable fear determination, the case shall be returned to the USCIS for the removal of the alien to the country of intended removal. In such a case, the alien will have no grounds for appealing the immigration judge’s decision.

Under 8 C.F.R. 208.31(g)(2), if the immigration judge disagrees with the asylum officer’s negative reasonable fear determination and finds instead that the alien does have a reasonable fear of persecution or torture in the country of intended removal, the alien will be permitted to submit a Form I-589, Application for Asylum and Withholding of Removal. 8 C.F.R. 208.31(g)(2)(i) makes explicit, as was the case for an immigration court hearing on an application for withholding of removal after a positive reasonable fear determination by the asylum officer, that the immigration judge may only consider the alien’s application for withholding of removal. This means that the alien will not be eligible to apply for any other form of relief from removal. In this situation, either the alien or the government may appeal the immigration judge’s final decision on the alien’s eligibility for withholding or deferral of removal to the BIA.

No Authority in Withholding Only Proceedings for Bond Redetermination

In the Matter of A-W-, 25 I&N Dec. 45 (BIA 2009) [PDF version], the Board held that an immigration judge hearing a case that was referred to immigration court with the issuance of a Form I-863 does not have the authority to “redetermine the conditions of custody” of the alien. Rather, the immigration judge only has this authority when hearing a case involving an alien who was issued a Form I-862, Notice to Appear. In the context of the issues discussed in this article, the Matter of A-W- means that the immigration court may not issue bond to an alien who is in immigration detention in withholding only proceedings.

Conclusion

If an alien is charged with removability under section 238(b) or 241(a)(5) and intends to contest the charges or seek relief from removal, it is crucial for him or her to consult immediately with an experienced immigration attorney. An experienced immigration attorney will be able to assess the case expeditiously and advise the alien on whether there are any paths for seeking relief from removal available. If the alien seeks withholding of removal based upon a fear of persecution or torture in the country of intended removal, an experienced immigration attorney will be able to guide the alien through the reasonable fear determination process from the interview to immigration court proceedings. To learn about the requirements for demonstrating eligibility for both statutory withholding of removal and withholding of removal under the Convention Against Torture, please see the selection of articles listed in the introduction.

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. 705, 714-15, Print. Treatises & Primers.

Pennsylvania Immigration Resource Center (PIRC). Withholding-Only Proceedings Toolkit. Https://pennstatelaw.psu.edu/news/immigration-clinic-creates-toolkit-withholding-only-proceedings-0. Pennsylvania State University Dickinson School of Law’s Center for Immigrants’ Rights, Aug. 2014. Web. 11 July 2016.