WITHHOLDING OF DEPORTATION/REMOVAL

Fear of Persecution: "More Likely Than Not"

243(h), 241(b)(3), of the Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163, 8 U.S.C. 1253(h), 1231(b)(3).

1999 VIKRAM BADRINATH, P.C. All rights reserved.


Introduction

The United States government pursuant to an international treaty obligated via the United Nations 1951 Convention relating to the Status of Refugees ("Refugee Convention"), has recognized and implemented in U.S. law a form of relief from deportation or removal proceedings knowns "Withholding of Deportation/Removal", currently at both 243(h) and 241 (b)(3) of the Immigration and Nationality Act, respectively.

U.S. obligations under the Refugee Convention have been in effect for many decades and provides for the protection of an alien if he can demonstrate a "well-founded fear" on account of race, religion, national origin, political opinion, or membership in a social group, a different section of law provides for the protection of aliens where his "life or freedom would be threatened." This protection is garnered from Article 3 of the Refugee Convention and is known as Withholding of Deportation/Removal, and places an absolute bar against the return of an alien to a country where his life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group or political opinion." This form of relief is different from Political Asylum, inasmuch as an Immigration Judge has no discretion to deny an application. If an alien can prove his case, relief must be granted as a matter of law. Under the current state of procedural due process, an Immigration Judge may not consider nor touch upon an Application for Withholding of Deportation/Removal, until he has first decided and denied an application for Political Asylum. In addition, an Immigration Judge may adjudicate both claims simultaneously.

Under the current regulations, claims for Article 3 Withholding of Deportation/Removal protection are exclusively determined by Immigration Judges (IJs) of the Executive Office For Immigration Review (EOIR). The regulations permit aliens to raise Article 3 claims during the course of regular immigration removal proceedings, giving them the opportunity for prompt and fair consideration. Decisions about eligibility by the IJs are subject to review by the Board of Immigration Appeals, also a part of EOIR.

Withholding Protection Under Article 3

The current rule creates two separate types of Article 3 protection. The first protection is regards Withholding of Removal. The second protection is deferral of removal, a more temporary form of protection. Withholding of Removal will be granted to aliens who can demonstrate that his "life or freedom" would be threatened on account of one of the five (5) enumerated grounds. In addition, an alien who meets the above criteria will be denied Withholding of Removal, if: (a) the alien ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group or political opinion; (b) the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the U.S.; (c) there are serious reasons for considering that the alien has committed a serious, nonpolitical crime outside of the U.S. before arrival in the U.S.; (d) there are reasonable grounds for regarding the alien as a danger to the security of the U.S. Hence, an alien who can demonstrate persecution may still be denied Withholding if they fall into any of the four (4) enumerated categories of exemption.

Under the new immigration scheme, an alien convicted of an "aggravated felony" for which the person has been sentenced to an aggregate term of imprionsment of five (5) years is presumed to have committed a "particularly serious crime" and is ineligible for Withholding of Removal. This means that aliens who are ineligible for Withholding of Removal may include certain criminals, terrorists, or persecutors. Moreover, family members such as spouses or children may not receive derivate grant status from an withheld removal beneficiary. Additionally, an alien who is granted withholding of removal may be detained by the U.S. INS indefinitely, or may be released into the United States but cannot depart the country nor adjust their status to that of a lawful permanent resident.

Article 3 protection is not the same as asylum. Persons claiming asylum must establish a "well-founded" fear of persecution, based on one of five grounds: race, religion, nationality, membership in a social group or political opinion. Article 3 does not require that the torture be feared on account of those five grounds, but a higher standard exists, with applicants required to establish that it is "more likely than not" that they would be tortured if removed to a specific country. Further, not all types of harm that qualify as persecution necessarily constitute torture. For those who meet the respective standards, a grant of asylum is discretionary while Article 3 protection is mandatory.

In addition, persons with serious criminal or terrorist backgrounds, as well as persecutors, cannot be granted asylum nor withholding of removal. However, such persons will not be returned to torture, and may be subject to detention where appropriate. Also, Congress has provided that individuals granted asylum can file for permanent resident status after one year and that an asylee's immediate family members may be granted the same status. Congress has not provided authority to grant permanent resident status to a person based on Article 3, nor the ability to bring family members to the United States.

Forms of Protection Available Under U.S. Law

Article 3 protection is not the same as withholding under the Immigration and Nationality Act, which implements Article 33 under the 1951 Refugee Convention, or asylum:

Asylum Claims Article 3 Withholding Article 3 Claims
  • Not a treaty obligation
  • A treaty obligation
  • A treaty obligation
  • Discretionary
  • Mandatory
  • Mandatory
  • One-year filing deadline
  • No filing deadline
  • No filing deadline
  • Standard requires a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, political opinion in the country in question
  • Harm feared must be on account of a protected ground
  • Standard requires that it is more likely than not that the person would be persecuted on account of race, religion, nationality, membership in a particular social group, political opinion in the country in question
    • Harm feared must be on account of a protected ground.
    • Standard requires that the person is more likely than not to be tortured in the country in question
    • Harm feared must be on account of a protected ground.
    • Persons ineligible for protection include certain criminals, terrorists, persecutors
    • Persons ineligible for protection include certain criminals, terrorists, persecutors
    • No bars to protection
    • Basis for adjustment to legal permanent resident status
    • Not basis for adjustment to legal permanent resident status
    • Not basis for adjustment to legal permanent resident status
    • Immediate family members may be granted same status derivatively
    • Family members may not be granted derivative status
    • Family members may not be granted derivative status
    • Grant confers permission to remain in U.S.
    • Grant prohibits only removal to country of risk, does not prohibit removal to non-risk country
    • Grant prohibits only removal to country of risk, does not prohibit removal to non-risk country

    Application Procedure

    In order to raise a claim for Withholding of Removal, an applicant must file Form I-589, Application for Asylum and for Withholding of Removal. Detailed instructions will be issued to accompany the forms, explaining how to use them to raise an claim for withholding. This form should be filed in conjunction with Form G-325A (Biographic Information) with the Office of the Immigration Judge (Immigration Court) having jurisdiction over the deportation, removal, or exclusion proceedings of the applicant.

    For more information about Withholding of Removal, please contact us by email, telephone, or fax or schedule an appointment to have your individual case discussed and analyzed an attorney.