I Hate Withholding of Removal. Here’s Why.

by Jason Dzubow on December 10, 2015

I was in court recently for an asylum case where the DHS attorney offered my clients Withholding of Removal as a “courtesy” in lieu of asylum. DHS did not believe that my clients were legally eligible for asylum, but made the offer in order to settle the case. I negotiated as best I could for asylum, and I think the DHS attorney listened carefully, but ultimately, he was unmoved. When the Immigration Judge (“IJ”) learned that DHS would agree to Withholding, he remarked that the offer was “generous,” which I took as a sign that he wanted us to accept it. In the end, my clients did not agree to Withholding of Removal, and so the IJ reserved decision. We shall see what happens.

So what is Withholding of Removal? Why did the IJ view an offer of Withholding as generous? And why did my clients refuse this offer?

Stop complaining - You're lucky we give you anything to eat at all.

Stop complaining – You’re lucky we give you anything to eat at all.

Withholding of Removal under INA § 241(b)(3) is a lesser form of relief than asylum. If a person has asylum, he can remain permanently in the U.S., obtain a travel document, petition to bring immediate relatives here, and become a lawful permanent resident and then a U.S. citizen.

A person with Withholding of Removal, on the other hand, has technically been ordered deported, but the deportation is “withheld” vis-à-vis the country of feared persecution. This means that the person cannot be deported to that country, but she could (theoretically) be deported to a third country. A person with Withholding of Removal is eligible for an employment authorization document (“EAD”), which must be renewed each year. However, unlike with asylum, she cannot leave the U.S. and return, she is not eligible to become a resident or citizen, and she cannot petition for family members. In addition, on occasion, ICE (Immigration and Customs Enforcement) attempts to deport the person to a third country. Normally, this consists of ICE ordering the person to apply to various countries for residency. This is essentially a futile exercise, and it usually involves hours of wasted time preparing applications and sitting around the ICE office. Maybe it is designed to intimidate the person into leaving, but at a minimum, it is another stressful hassle that the Withholding-of-Removal recipient must endure.

The bottom line for Withholding of Removal is that those who have it are never truly settled here. They risk losing their jobs and drivers’ licenses if their EAD renewal is delayed (which it often is). They cannot qualify for certain jobs or certain government benefits. They usually cannot get in-state tuition for school. They can never travel outside the U.S. to visit relatives or friends, even those who are gravely ill. They are here, but not really here.

For me, Withholding of Removal is more appropriate for some recipients than others: One reason a person gets Withholding instead of asylum is that he has criminal convictions that make him ineligible for asylum. In the case of a convicted criminal, it is easier to justify denying the benefit of asylum, even if we do not want to send the person back to a country where he could be persecuted.

In other cases, it is more difficult to justify Withholding. If a person fails to file for asylum within one year of his arrival in the United States, he generally becomes ineligible for asylum. He remains eligible for Withholding, but downgrading his status from asylum to Withholding because he failed to file on time seems a harsh consequence for a relatively minor infraction. Other people—like my clients mentioned above—might be ineligible for asylum because the government believes they were resettled in a third country before they came to the U.S. “Firm resettlement” is a legal construct and it does not necessarily mean that the person can live in the third country now (my clients cannot).

Despite the limitations of Withholding of Removal, many IJs (and DHS attorneys) seem to view it as a generous benefit, and they encourage asylum applicants to accept Withholding as a way to settle removal cases. They also tend to take a dim view of applicants who refuse an offer of Withholding: If the person is so afraid of persecution in the home country, why won’t she accept Withholding and avoid deportation to the place of feared persecution? I understand their perspective, but I think it fails to account for the very basic desire of people like my clients to make the U.S. their home. They don’t want to live forever unsettled and uncertain. Having escaped danger, they want to live somewhere where they can make a life for themselves and—more importantly—for their children. Withholding does not give them that.

Frankly, I think that most IJs and DHS attorneys underestimate the difficulty of living in the U.S. with Withholding of Removal. And these difficulties are not limited to practical problems related to jobs and driver’s licenses, attending and paying for school, and the indefinite separation from family members. For my clients at least, Withholding of Removal does not alleviate the stress of their situation. They have fled uncertainty only to find more uncertainty. Will they be deported to a third country? Will they lose their job if the EAD renewal is delayed? If their driver’s license expires and they must drive anyway, will they be arrested? Can their children afford college? If they buy property and invest in life here, will they ultimately lose it all? Such uncertainty would be bad enough for the average person, but we are talking here about people who have already had to flee their homelands. Asylum is a balm to this wound; Withholding of Removal, in many cases, is an aggravating factor.

Perhaps if IJs and DHS attorneys knew more about the consequences of Withholding of Removal, they would be more understanding of asylum applicants who are reluctant to accept that form of relief, and they would be more generous about interpreting the law to allow for a grant of asylum whenever possible.

{ 37 comments… read them below or add one }

Mario December 12, 2017 at 10:01 pm

Hi Jason . I granted my WOR in 2014 and I didn’t have any issue at all when I have to do a renewal. The primary case was for a Asylum but the interpreter did a mistake when translate to me and my attorney didn’t notice that I did after the hearing when my partner told me what was wrong. 2 questions: Can I open my case to be granted for a Asylum??. …or better get married with my partner who is a citizen to fix my status???..Thank you in advance and happy holidays.

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Jason Dzubow December 13, 2017 at 7:29 am

You could try to reopen, but you are outside the normal time frame to do that (I think it should be within 90 days) – talk to a lawyer if you want to try that. As for the marriage case, depending on your eligibility to adjust status (entered the US legally, no criminal convictions, etc.), you should be able to do it. The first step is to file the I-130 and get it approved, but the process is tricky and I recommend you use a lawyer. Take care, Jason

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Farhan December 11, 2017 at 8:39 am

Hi Jason, It’s been 4 years since IJ decided my case and denied my Asylum. I didn’t give up and with another attorney and,of course by the will of GOD, went back and managed to win my asylum. Now as a Asylee I have to wait about a year to file a permanent resident card. Is there kinda waiver or similar thing that you submit in order to get short of the 1 year waiting period for applying green card? The denial of my previous asylum case was based on factual errors and the IJ only had to reconsider after I submitted documents previously unavailable.

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Jason Dzubow December 11, 2017 at 6:44 pm

I think there is nothing you can do except wait the one year. Take care, Jason

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Eliot December 8, 2017 at 7:47 pm

HI,
When i filed my EAD application for extension i attached and submitted a copy of court dispositions for DWI misdemeanor charge in 2009. After I mailed my application i noticed that they might need certified court dispositions. I went to court and got certified dispositions now. They already received my application and currently it’s in process. The question is should I wait for USCIS to send me a letter or should I send it with a copy of a receipt from USCIS and explanation? I’m a little bit worried if I wait until they send me a letter the process might be delayed and my EAD expire.
Thanks

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Jason Dzubow December 10, 2017 at 7:47 am

It’s up to you, but I prefer to wait for the request for evidence (if any), as that will come with a cover letter and a bar code, so it will be easier to match with your file when you mail it in. Also, USCIS may not need certified copies, and so sending them may be unnecessary (and potentially waste time as they match them to your existing file). Take care, Jason

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Rooby Nichols December 8, 2017 at 6:24 pm

Hi Jason,

I was approved withholding back 2008 and an I-130 approval in 2009 but I was illegal when I came so I can never applied for my I-485. Is there any more options for my situation please.

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Jason Dzubow December 10, 2017 at 7:45 am

Possibly – maybe you are eligible for 245(i) or an I-601A provisional waiver. It is probably worth a conversation with a lawyer to go over the options and see whether anything might work. Take care, Jason

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Joshua December 5, 2017 at 3:02 pm

Hi Jason,
I submited my i-589 application, unfortunately the acknowledgement receipt was sent to the address i used but for unknown reasons he hid all mails from me, i come to follow it up at my local offices and assured me they sent the receipt to the first address, but the guy denys ever receiving any mail, but i have my case number A number. My question is there another way i can get the acknowledgement receipt letter again? Because i want to change this address as first as i can
Thanks

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Jason Dzubow December 6, 2017 at 6:43 pm

You can probably just file a change of address form, AR-11 available at http://www.uscis.gov. If you have the A number, you should be able to do that online and all future mail should go to the new address. Take care, Jason

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Mt December 4, 2017 at 7:26 am

Hi , in February 2017, I was granted WOR by the judge in Ohio because I didn’t didn’t file within 12 months of my arrival., my question is, it is possible that I can get a permanent resident if I get married to my long time girlfriend who is the American citizen?

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Jason Dzubow December 4, 2017 at 10:43 pm

Maybe, but it depends on many factors – talk to a lawyer to determine whether you are eligible and with help on how to proceed, as it is not so easy, but it may be possible, especially if you entered the US with a visa. Take care, Jason

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Ritina December 1, 2017 at 1:51 am

Hi jason
1.what are the chances of success for a person who is a senior military,government or political official.are their cases easy or difficult to handlle? Can they be deported or they can be assigned a withholding of removal.

2.are these cases publicized or communicated back to the government they are afraid of?

3.do such cases get treated faster?

4.my brother is in US for a work related mission and wants to apply as he faces political harassment back home and is a senior military officer back home.

Thank you.

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Michael I. December 1, 2017 at 9:16 am

​Dear Ritina,

I was in a similar situation 20 years ago. Unfortunately in my case the contact US agents I was working with overseas never told me the truth.
One thing I had to learn the very hard way. NEVER enter in to a legal issue without an attorney. Legally they have the freedom as per training to deceive you in any manners or techniques in order to achieve there missions. In less you have an extremely strong provable reason you will not get a political asylum statute especially when still an active military officer of a foreign government. There are special diplomatic treaties in regards of military personal in less you are part of an hostile government. If you are part of a friendly allied country forget about it. You will start a fight with very low chances an high risk when eventually return home.
As a person with almost similar story I will suggest you to hire a very good attorney with knowledge in this specific field. Not every body is prepared to face the highest level of government officials in order to have them testify in court for you. In your case most likely will be necessary to ask DoD for records. And this is a very difficult task. You must study very deep the type of visa have been issued for you to enter US. Many of the military officials visas are special with no possibility of adjustment of statute. Just like Visa Waiver. Your case is not on ordinary case. Is a diplomatic sensitive case witch can trigger an international diplomatic crises between US and your country. In less you are someone who have exercised as undercover asset for the interests of US (spy) you will not be worth such of risk for US. Remember that everyone is an unique case. With representations from a very prepared attorney you will have the most advantage. My final advice: DO NOT TRY to apply for such case on your on. Is a MUST to have a very good attorney. Good luck.

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Jason Dzubow December 1, 2017 at 5:55 pm

1 – It depends on the case. Usually, it is easy to prove such a case, but sometimes, such people have problems, especially military/government people where the military/government abused human rights. 2 – No. 3 – Usually not, but that could happen. 4 – He might want to consult with a lawyer, as military people often face additional issues, and he should protect himself. Take care, Jason

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Papis4 November 29, 2017 at 5:39 pm

My cousin had appointment with ICE 3 weeks ago. She was granted withholdings by the judge. But on ur last visit with ICE agent talked to her like he wanted her to deported herself or if they got paper work against her they will come a d deported her. Her case probably withheld because she came from a different country where she is not really from. Actually she got another appointment on february 18th. She don’t know what to expect!? Are they gonna detained her? Are they gonna order her to live the country? Are they gonna give a time to live the country? She got two minors kids that are in school and they are US citizens. One of them is really gifted her school said and she is 13 ! The little One is 6 and got a skin condition she can’t live in Africa with all the heat! She is from Mauritania! Does she need to go with a lawyer on february or with her kids ? She is out of her mind right now and the kids are overstress and cry everyday thinking they all gonna be deported cause they can live without there mom. Here is her story. Any legal advice will be welcome. Thanks MR JASON

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Jason Dzubow November 30, 2017 at 7:22 am

She should remain calm – ICE is doing this to harass her. They do it to many people with WOR. However, they cannot deport her unless she has legal status to live in a third country. If she complies with what they ask, eventually, they should leave her alone. If she wants to make things easier on herself, she can bring a lawyer to that appointment, as ICE agents are much less likely to be aggressive if a lawyer is present. But either way, she cannot be deported, as WOR is a very strong status. Take care, Jason

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Shidur Baba November 29, 2017 at 12:40 pm

Hello sir, I am a DACA recipient whose previous status was WOR. If Dream Act passes how would it affect my status ?

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Jason Dzubow November 29, 2017 at 6:46 pm

It really depends on the specifics of the law – WOR means that you technically have a removal order (that was withheld), and so you may or may not be able to benefit from a change in the law. It may also depend on how you entered the US and whether you have a criminal conviction. Take care, Jason

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Robert Sieger November 28, 2017 at 2:27 am

Michael I. “I was asking them to be placed under detention” — WTF??
Rms125a@hotmail.com

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Robert Sieger November 28, 2017 at 2:24 am

Michael I. — Fuck you, parasite. Didn’t read a word about your job or working. Ineligible or stripped of asylum, probably as a criminal, blaming it on Trump and GOP. Put the blame where it belongs — on the third-world shithole of a country you wanted to get out of, just like everyone else there does.
Rms125a@hotmail.com

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Michael I. November 28, 2017 at 8:39 am

Your IQ must be very low as a result of lack of education.
Go back to your ignorant life style.
Must be very frustated person.
Beside flipping burgers, what else have you done for humanity?
Have a nice day Sieger.

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Jason Dzubow November 28, 2017 at 4:39 pm

He didn’t talk about eating breakfast or taking a nap either – probably because it is totally irrelevant to his posting. But maybe it makes you feel better about yourself to make assumptions about others. Good for you.

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Michael I. November 27, 2017 at 9:04 am

Dear WOR community,
This is a follow up message on my last post where I was shearing my most recent experience with ICE when reporting. As a short recount on my story: ICE have asked me to bring a copy of a passport application/receipt from the Embassy or Consulate of my country of origin. I did not comply with there order as instructed. However I did exchange an email communication with my country of origin Ministry of Foreigner Affairs in charge of passports department. Showing that correspondence to ICE officers have fuel a very aggressive verbal attitude from them, promoting an unprecedented reaction where I was asking them to be placed under detention and them forcefully removing me from the DHS/ICE building without a further reporting scheduled day.
As a result of that incident I have initiated an official complain with DHS Office of Inspector General. On my complain I have very detailed explained my case against ICE. I was sincerely not expecting any results. But for my very big surprise, 48 hours from my submitted complain report, I was called by the Supervisory Office of ICE where I usually report. The officer have stated over the phone that he was investigating the incident and asked me few questions about that. I had step by step explained and after listening to my story the officer told me that I WAS NOT SUPPOSED TO RECEIVE SUCH OF ORDER. Getting in touch with any officials or representative of the government against you have been granted protection is against the law. I was offered official apologies from DHS/ICE Superior officials for this encounter and asked to report back to the office Monday November 27, 2017 in order to receive the next reporting day. I have done all they have asked during my 7 years reporting time without any incidents. Recently I have discovered that some ICE officials are just breaking the law and the internal rules just by personal vendetta fueled by this aggressive anti-immigrant administration. Is not like that. There are laws protecting you and me despite our immigration statue. The right way to do is to comply with your LEGAL obligation. As an advice to all of you: Have your self prepared for the worst. Sacrifice and safe some money to hire an immigration attorney if you feel ICE will put unnecessary illegal pressure on you. If I had an attorney with me at the reporting day nothing what happen it will ever occur. Officers attending our reports are frustrated do to the nature of the job assignment. None of them wanna stay behind a window and stamp reporting paperwork. That is for the new fresh officers or the ones who have stepped on plates and now they have been reassigned administrative work – better said punished. This is why they have such of aggressive attitude.
If you have find your self in a similar situation, study your rights. Have a letter or email to this office: https://www.ice.gov/leadership/opr
Make sure you are completely honest about your incident story.
Good luck.

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Michael I. November 27, 2017 at 3:57 pm

Hi everyone,
Just got back from ICE. The Office of General Inspector have ordered a thrill investigation on ICE officers who abuses their positions according to my complain. Under no circumstances a Federal Officer can abuse the power of office. Period. If you feel that you have been abused and intimidated don’t stay idle. Take action and defend your rights. People under the WOR statute have the right to be treated with respect and dignity, regardless of current immigration statute. And this is available for EVERY ONE ELSE.
The Superior Command Office of ICE have assured me that no one will ever ask for what they are not supposed to ask for.
Up on reporting next year, my case will be attended only by a supervisor, without having to wait several hours in line.
Just remember: if you do not have a valid travel document (passport), you MUST not be forced to get in contact with representatives of the government of your country of origin. Is against the principles of an WOR statute.
As long as you are acting respectful, within a good faith and in time with all legal required conditions, you are respecting the law.
Just like me you had strong enough reasons for an Immigration Judge to grant you the WOR. As well strong enough for the Government Attorney not to succeed with appealing the Judge decision. There is hope that our voices soon will be heard and we will once for all put behind us, this dark and stressful experience.
Good bless you all.

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Jason Dzubow November 27, 2017 at 6:37 pm

Thank you for sharing this – it is very helpful and inspiring. Take care, Jason

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Eli November 27, 2017 at 8:19 pm

Thanks for sharing this, it’s really helpful. It’s good to hear that the supervisor is willing to investigate the matter, this how professionals do their job.

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Mark Nerheim November 28, 2017 at 5:58 pm

I have several clients in similar situations, in asylum cases pending at the 9th Circuit where ICE is demanding that they obtain passports or travel documents from the very same governments that have threatened them, and clients with GRANTS of Withholding of Removal where ICE is again demanding that they obtain passports or travel documents from governments whose actions have resulted in the withholding of removal grants.

Michael I.’s comments above suggests, without citation, that the Withholding of Removal (WOR) statute somehow prevents ICE from demanding that someone granted WOR obtain a passport or travel document from their home country.

If there are such specific provisions/rules/ regulations, it sure would be helpful to see a citation for them.

Thank you.

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Jason Dzubow November 28, 2017 at 6:49 pm

I do not know of any such provisions, but the purpose of WOR is to protect people from persecution in the home country. Trying to force a WOR beneficiary to go to his embassy and request a travel document (or anything else) seems contrary to the protection inherent in WOR. If my client were being threatened in this manner, I would contact the ICE OIG and maybe the ACLU, AILA, AIC or some other organization with more resources to protect people. My guess is that these are “rogue” ICE agents who are forcing aliens to go to their embassies, and it should be reported and resisted. Take care, Jason

hector November 26, 2017 at 11:38 am

Question, how can someone with WOR/CAT can get a valid state ID and social? Mines were taken away during my court case and since then my passport from where i was born expired. I was told not to get one because that could get me in trouble. I only have my work permit and to ask for ID/drivers license or social they need more valid identifications. Should I get a passport?

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Darius Vitkus November 26, 2017 at 12:55 pm

If you had your US driver’s license you should be able to get replacement. You need to have work authorization and any mail with your address it should be sufficient to get state ID back.

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Jason Dzubow November 26, 2017 at 8:41 pm

Different states have different rules about state IDs, but you should be eligible for a social security number if you have a work permit (that is federal and should be the same across the US). Talk to the Social Security Office for the card. Most people can get a state ID if they have a work permit – maybe your state DMV can help. Take care, Jason

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Muhammad November 24, 2017 at 1:14 pm

Mr,Jason thanks for quick reply but sir I just wanna confirm is it possible to have asylum status with criminal charge and it’s been over a year , coz I hate too if I had only option for withhold of removal,,,thanks

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Jason Dzubow November 24, 2017 at 5:16 pm

It depends on the criminal charge. Some convictions block a person from asylum; other do not block the person, but are considered a negative factor. If you have not been conceited, the arrest may not have any effect. I recommend you talk to a lawyer about the specific charge to see what is the effect, and what can be done about it. Take care, Jason

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Darius Vitkus November 24, 2017 at 5:29 pm

In order to qualify for asylum you have to file for it infirst 12 months after you admitted to U.S. unless you can show excepional circumstances that prevented to do so. I filed 18monts after admitted and got only WOR.
Exceptions to the asylum one year filing rule include changed circumstances which materially affect your eligibility for asylum and extraordinary circumstances related to the delay in your filing.

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Muhammad November 24, 2017 at 10:12 am

Hi there,sir I really enjoy reading you blog,I wanted to know that I was born and raised in Qatar.i got my us visa from there.My question is that Can I get asylum I m currently on b1 visa and it’s been 1 and half year coz my e2 visa got denied and moreover I m afraid I have convicted in Qatar of buying gold without police paper where they put five convictions on me later 3 files got close and two cases are still going on but I left coz foreigners have no rights there at all.Anyways if I apply asylum should I declare convictions ,may bar me or not applyingasylum ,I m a Pakistani national ,asylum will be based on fear from my home country ..thanks

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Jason Dzubow November 24, 2017 at 10:58 am

If you have status in Qatar and Pakistan, you need to get asylum from both countries, but most foreigners who live in Qatar have no permanent status there, so you may only need to seek asylum from Pakistan. The fact that you have a criminal charge in Qatar is relevant to your asylum case, so if you are seeking asylum, talk to a lawyer about that. Take care, Jason

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