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.

{ 16 comments… read them below or add one }

mayen June 26, 2017 at 3:44 pm

Can you cash your social security if one wants to leave to another country?

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Jason Dzubow June 26, 2017 at 10:21 pm

I do not know about that, sorry, Jason

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Luis Lucas June 24, 2017 at 4:19 pm

I was granted deferral of removal under CAT and my yearly report date is coming up in September but I am concerned about the current policy. Is there something that can be done prior to going in case DHS decides to detain me?

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Jason Dzubow June 25, 2017 at 12:25 pm

The government has the power to detain people who have CAT deferral, at least for a period of time. Generally, they do not detain such people unless they believe you are a danger to the community. You cannot be removed to the country of feared persecution, and if there is no other country where you can live permanently, the government cannot legally remove you. Hopefully, this will be enough to protect you at the check in (and I think it probably will be enough). If you are worried, maybe talk to a lawyer so you are ready in the event that something happens at the interview. Take care, Jason

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Luis Lucas June 25, 2017 at 3:58 pm

Hi Jason,

Thank you for your response.

I lived in the US since 69, was deported (due to criminal drug conviction) in 95 and tortured on two occasions in South America and returned to the US in 2002 and requested asylum. 7 years later I was granted deferral of removal under CAT. Have been living here ever since and working along with being married to a US citizen (which I know makes no difference). Just wanted to provide more insight about my case.

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Jason Dzubow June 26, 2017 at 6:31 am

These facts could make a difference depending on the case (and especially depending on the conviction). It won’t hurt to go over the case with a lawyer who can review the specific situation and maybe give you some ideas. Take care, Jason

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Ann June 23, 2017 at 7:09 pm

I win the withholding of removal the inmigration officer told me I have to applie for another country
He trie to do something but with me?

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Jason Dzubow June 25, 2017 at 11:51 am

They sometimes do this, but if there is no other country where you can live permanently, the government cannot deport you. Again, if you are having this problem, you probably want to talk to a lawyer about the specifics of the case to see whether the lawyer can assist you. Good luck, Jason

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Ann June 23, 2017 at 7:07 pm

I win Witholdind of removal
I go every year to inmigration office for supervision because I have an deportation orden 27 years ego
Because I never receive the order for show up on court
My husband he applied for I- 130 on June 2016
I don’t receive the answer
I don’t what I have to do

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Jason Dzubow June 25, 2017 at 11:49 am

You should have a lawyer review the case. Even if the I-130 is approved, you may not be able to get your green card. It depends on the case. You can call USCIS to inquire about the I-130. Tier phone number is on their website http://www.uscis.gov. If that does not work, you can try the USCIS Ombudsman – a link is at right. Take care, Jason

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Rachel June 23, 2017 at 2:50 pm

Hi,
I’m a naturalized U.S citizen and have married a Venezuelan in Sept 2015 in Alabama. He was denied withholding of removal because of a third possible country. I applied for I-130, and that was approved in Aug 2016, but we never received it. It was sent to an old address, so we have applied for a I-824 for a duplicate copy three months ago. We just received a letter saying it has been transferred to a different office in Lees Summit, MO. We called them requesting a processing time, and they said it might take another 6 months. We don’t know what to do anymore. We have been married almost two years now, and he has been denied a workers permit twice already. Can you give us any advice on what to do next, and why its taking so long?

Thank you.

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Jason Dzubow June 23, 2017 at 4:50 pm

If he was denied Withholding, he may have a deportation order, which could be the issue (though USCIS should still process the I-130 and the I-864). You can also obtain a copy of the approval if you file a Freedom of Information Act request using form G-639. This is free and you get a copy of your whole file, and it usually takes less than 6 months (maybe 3 or 4 months, but it is hard to predict). If you think he has a deport order, you should have a lawyer review the case. Take care, Jason

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Chuck June 14, 2017 at 10:10 am

Hi Jason,

Me and my family have WOR since 2008. Our asylum application was denied due to a possibility of a 3RD country. After a couple of moths of the sentence we received a citation by ICE and on that they put us under an order of supervision. As part of such order we signed a document that in which we understand we should be looking for a document to leave the USA. We have been OK for the last 7 years, but now with the new guidelines setup by the Trump administration, I am worried that I can be detained during my next supervision visit. We have behaved well; have no problems with the law and have never missed an appointment. I don’t know what to do, if it is there any options to adjust status or what preparations should I be doing if the worst is to occur.

Thanks for your answer.

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Jason Dzubow June 16, 2017 at 6:08 am

First, WOR is a powerful status – you cannot be deported to the country of feared persecution. The questions is, Can you be deported to a third country? Maybe if you have some evidence that you do not have status in the third country, you should bring that to your next check-in. Such evidence could be a letter from the third country’s embassy, or a letter from a lawyer in that country, or maybe something else. Whether you can change your status to something better, I do not know, but you could talk to an immigration lawyer here to go over your case and advise you. Also, anyone with WOR can be detained, but in the situation you describe, it sounds unlikely, even under Trump, unless the government really believes that they can deport you to a third country. Take care, Jason

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mario June 11, 2017 at 2:38 am

Hi Jason: I was granted with a10 in 2013 because my lawyer wasn’t enough good to fight for my asylum to tell the true. How ever I have a clean record never and ever I did anything wrong in this country. I enter to USA with a VISA Is possible to reopen my case and looking for asylum to go forward for a green card later years or it is not possible??. Thank you.

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Jason Dzubow June 12, 2017 at 9:34 pm

Maybe – there are many reasons to reopen. One reason could be that the lawyer made a mistake that caused you to lose your case. You may want to talk to a new lawyer to evaluate your case and whether there is any possibility to reopen on this basis (or on another basis). Take care, Jason

Reply

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