Relationship Between Order of Removal and Order of Withholding of Removal

Withholding of Removal


Introduction: Matter of I-S- & C-S-

On January 10, 2008, the Board of Immigration Appeals (BIA) issued a precedent decision titled the Matter of I-S- & C-S-, 24 I&N Dec. 432 (BIA 2008) [PDF version]. In its decision, the Board held that, when an immigration judge issues a decision granting an alien's application for statutory withholding of removal under section 241(b)(3) of the Immigration and Nationality Act (INA) [see article] without a grant of asylum, the immigration judge's decision “must include an explicit order of removal.” In this article, we will examine the underlying statutes, the facts of the case, and the significance of the precedent in the Matter of I-S- & C-S-.

To learn about applying for withholding of removal and other issues involving withholding of removal applications, please see our full article [see article].

Facts of the Case

The respondents, married natives and citizens of Indonesia, had been admitted to the United States as nonimmigrants. However, they remained in the United States beyond their authorized period of stay, and accordingly were placed in removal proceedings.
The Immigration Judge found that the respondents were removable and pretermitted (left unadjuciated) their applications for asylum as untimely filed.
The Immigration Judge granted the respondents' applications for withholding of removal under section 241(b)(3) of the INA. The Immigration Judge accordingly denied as moot their request for withholding of removal under the Convention Against Torture. The Immigration Judge did not enter a final order of removal.
The Department of Homeland Security (DHS) filed a motion requesting that the Immigration Judge amend the order of withholding of removal to include language ordering the respondents “removed to Indonesia or, in the alternative, any other country, prior to granting withholding of removal.” The Immigration Judge denied the DHS's motion. The DHS appealed from the decision to the Board.

Analysis and Decision

The Board agreed with the DHS that the Immigration Judge was required to include an explicit order of removal in the order granting withholding of removal. Accordingly, the Board sustained the DHS's appeal and remanded to the Immigration Judge.

The Board acknowledged that “entering an order of removal prior to granting withholding may be a technicality.” However, the Board stated that it is not an “insignificant” technicality. This is because, as the Board noted, it is “axiomatic that in order to withhold removal there must first be an order of removal that can be withheld.” To this effect, the Board noted that the statute providing for statutory withholding of removal, section 241 of the INA, is titled “Detention and Removal of Aliens Ordered Removed.” The Board cited to the Supreme Court decision in Maguire v. Comm'r, 313 U.S. 1, 9 (1941), which held that “[w]hile the title of an act will not limit the plain meaning of the text, it may be of aid in resolving an ambiguity.”

The Immigration Judge held that the entry of a removal order prior to granting withholding was not required by section 241(b)(3). However, the Board found that regulations governing decisions entered by 8 C.F.R. 1240(c) and (d) require the Immigration Judge to enter a final order of removal before granting withholding of removal. The Board cited to the Matter of Chamizo, 13 I&N Dec. 435 (BIA 1969) [PDF version], wherein the Board had held that, based on the language of the existing regulations at the time, it would be improper to grant voluntary departure without entering a final order that would result in the conclusion of removal proceedings. Following its holding in Chamizo, the Board held that in the instant case, the Immigration Judge's failure to order the respondent's removed in his order granting withholding left the proceedings in the case “unresolved and incomplete.”

The Board also looked to the inherent nature of the withholding of removal form of relief as contrasted with asylum. First, the Board noted that, unlike asylum, a grant of withholding of removal is not discretionary and does not afford a beneficiary the right to remain in the United States (see e.g., INS v. Aguirre-Aguirre, 526 U.S. 415, 419-20 (1999) [PDF version]; INS v. Cardoza-Fonesca, 480 U.S. 421, 428 n.6 (1987) [PDF version]). Furthermore, 8 C.F.R. 208.16(f) allows the DHS to remove an alien who has been granted withholding to a country other than the country to which the alien's removal has been withheld. 8 C.F.R. 1240.11(e) explicitly provides that “[n]othing in this section is intended to limit the Attorney General's authority to remove an alien to any country permitted by section 241(b) [of the INA].” The Board reasoned that, if withholding of removal could be granted without a final order of removal, the DHS would have no authority to remove an alien to an alternative country. Accordingly, the Board concluded that an Immigration Judge must include an explicit order of removal in a decision to grant withholding of removal.

The Board sustained the DHS's appeal and remanded the record to the Immigration Judge for entry of a final order of removal.

Conclusion: The Matter of I-S- and C-S-

The Matter of I-S- and C-S- makes explicit that withholding of removal cannot be granted without an explicit order of removal. The DHS made clear that the Matter of I-S- and C-S- applies to withholding of removal and deferral of removal against the Convention Against Torture [see article] as well (see 71 FR 55728).

The Board reached this decision primarily for two principle reasons. Firstly, the Board found that a careful reading of the applicable statutes and regulations supports the assertion that an alien must be ordered removed before his or her removal can be withheld. Secondly, the Board held that, because an alien who has been granted withholding may be removed to any country to which his or her removal was not withheld, allowing for a order of withholding of removal without an explicit order of removal would run contrary to this provision of the withholding of removal statute and regulations. Both reasons reflect the purpose and function of the withholding of removal form of relief from removal.

An alien who is charged with removability should consult with an experienced immigration attorney for a full assessment of his or her options to seek relief from removal. Whether an alien has grounds to seek asylum and withholding of removal will depend on the specific facts of each case. To learn more about a variety of issues about withholding of removal and other forms of relief from removal, please see our full section [see category].