Who Is Barred From Receiving Withholding of Removal

Although Withholding of Removal isn't subject to all the eligibility bars as asylum is, some major hurdles to eligibility remain.

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Withholding of Removal is an alternate or backup remedy to asylum. It offers a temporary way to avoid removal from the U.S., plus a work permit, to people whose life or freedom would be threatened if returned to their country of origin, because they would “more likely than not” face persecution there. (This comes from the Immigration and Nationality Act at I.N.A. Section 241(B)(3).)

Withholding of Removal is a far less desirable remedy than asylum, because it does not lead to any permanent status in the U.S. (such as a green card) and it can be taken away if conditions in one’s home country improve. Also, it comes with no rights to travel on a Refugee Travel Document or to bring in one’s family members. See “Your Rights After a Grant of Convention Against Torture Protection or Withholding of Removal” for more information.

On the other hand, Withholding of Removal is a useful remedy, in that it is open to some people who are barred from qualifying for asylum. For instance, the one-year deadline on submitting an application for asylum does not apply to applicants for Withholding of Removal. Similarly, while applicants who found another country in which they were able to “firmly resettle” before coming to the United States are barred from receiving asylum, they may nevertheless qualify for withholding.

Furthermore, an Immigration Judge might deny someone asylum on discretionary grounds, such as a history of non-serious criminal convictions. No discretion is allowed in granted Withholding of Removal to someone who is eligible, however. If the person meets the standards, the judge must grant Withholding of Removal, even if he or she thinks the person doesn’t deserve any helpful treatment from the United States.

Nevertheless, there are bars to qualifying for Withholding of Removal in the United States. These bars all apply to applicants for asylum, as well. They include:

  • Having been convicted of a particularly serious crime while in the U.S. This means that the applicant is a danger to the community. Although all aggravated felony convictions are considered “particularly serious crimes” for asylum purposes, the law says that, for withholding purposes, only conviction of an aggravated felony with a prison sentence of at least five years need be considered a particularly serious crime.
  • Having committed a serious nonpolitical crime in another country prior to entry to the U.S. No actual conviction is required, but there must exist “serious reasons to believe” that the applicant committed this crime. The idea is that the crime wasn’t committed from genuine political motives (which might excuse it). However, even a political crimes can become a bar to eligibility if it was out of proportion to the political aspect of the conduct, or atrocious or barbarous in nature.
  • Having ordered, incited, assisted, or otherwise participated in the persecution of others. If the claimant is also a persecutor, on grounds of others’ race, religion, nationality, membership in a particular social group, or political opinion, he or she does not qualify for Withholding of Removal.
  • Presenting a danger to U.S. security. Such a finding must be based on “reasonable grounds” for belief. It includes (but is not limited to) anyone who has engaged in terrorist activities, endorses terrorism, or has been a member of or provided material support to a terrorist organization.

No exceptions will be made to any of the above bars.

If you are thinking of applying for withholding of removal, consult an experienced immigration attorney.

by: , J.D.

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