Government attorney willing to grant withholding of removal instead of asylum: Should I take it?

Before settling for withholding, do everything reasonable to pursue your claim for asylum.

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Question

I have applied for asylum and withholding of removal in immigration court. But my lawyer told me there is a chance the judge won’t give me asylum because I have a criminal record. Now the lawyer for the government says he is okay with me getting withholding of removal if I don’t ask for asylum anymore. Is this a good idea?

Answer

It depends. Attorneys usually recommend that asylum seekers apply for withholding of removal at the same time, but only as a backup, in case their asylum application is denied.

In other words, withholding of removal is worth obtaining only when a person has little to no chance of getting asylum. This is because, although withholding of removal protects people who are afraid to return to their home country from being sent back, it gives them none of the other benefits of asylum — such as the right to petition for family members, to reenter the U.S., to not be removed from the U.S., and to one day apply for a green card.

In fact, a withholding of removal is really an order of removal to a safe third country, except that this safe third country is not specified in advance. The grant allows its beneficiary to stay in the U.S. for as long as no safe third country is ready to accept him or her. However, until such safe third country is found, the beneficiary may well be placed under regular supervision by the Department of Homeland Security or DHS — which could require anything from regular visits of DHS offices to electronic monitoring.

The question, then, is whether you still have a decent chance of obtaining asylum.

The answer depends mainly on how serious your criminal record is. You should find out from your attorney whether your criminal record completely bars your eligibility for asylum, in which case withholding of removal would likely be your best option. If, instead, your criminal record could lead your immigration judge to deny your asylum application only on “discretionary” grounds, then you might be better off going forward with the asylum application, and exhausting your appeals if necessary.

Just keep in mind that, if you are clearly eligible for withholding of removal, then the judge will grant it to you regardless of whether the attorney for the government (for DHS) agrees or not. To be sure, DHS’s position can influence the judge’s perception of your eligibility to some degree; however, the point remains that, unlike asylum, withholding of removal can never be denied on purely discretionary grounds.

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