1. What is Withholding of Removal?

Withholding of Removal is a form of relief from deportation for individuals who can demonstrate that they would face a threat to their life or freedom if they were returned to their home country. It is available to individuals who are not eligible for asylum but can prove a higher standard of risk of harm, known as a “clear probability” or “more likely than not” standard. If granted, the individual cannot be deported to the country where they fear persecution. However, withholding of removal does not provide a path to permanent residence or citizenship.

2. Who is eligible for Withholding of Removal?

Withholding of removal is a form of relief from deportation that is available to certain non-citizens who face a significant risk of persecution or torture if they are forced to return to their home country. This form of relief is similar to asylum, but with slightly different eligibility requirements.

To be eligible for withholding of removal, an individual must meet the following criteria:

1. They must be in the United States physically.

2. They must have a fear of persecution or torture based on their race, religion, nationality, political opinion, or membership in a particular social group.

3. The persecution or torture they fear must be by the government or individuals/groups that the government is unable or unwilling to control.

4. They must prove that it is more likely than not that they will suffer persecution or torture if they are returned to their home country.

5. They cannot have committed certain crimes or engaged in terrorist activities.

Additionally, unlike asylum, there is no time limit for filing for withholding of removal – an individual can apply at any time during their immigration proceedings, even if they have been in the United States for more than one year. However, a grant of withholding does not provide a pathway to permanent residence like asylum does. It simply allows an individual to remain in the United States and avoid deportation to their home country.

3. What are the requirements for Withholding of Removal?

The requirements for Withholding of Removal are:

1. The applicant must be physically present in the United States.
2. The applicant must demonstrate that they are unable or unwilling to return to their home country because of a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion.
3. The fear of persecution must be at the hands of the government or forces that the government is unable or unwilling to control.
4. The fear of persecution must be real and not just imagined.
5. The fear of persecution must be specific to the individual and not general conditions in the country.
6. The applicant cannot have committed any serious crimes that would make them ineligible for protection under this form of relief.
7. The applicant must file their application within one year of arriving in the United States or show exceptional circumstances for why they were unable to do so.
8. The burden is on the applicant to prove eligibility for withholding of removal with clear and convincing evidence.

4. How can I apply for Withholding of Removal?

To apply for Withholding of Removal, you can either file a Form I-589, Application for Asylum and for Withholding of Removal with the U.S. Citizenship and Immigration Services (USCIS) or request it as a defense against removal during your immigration court proceedings.

For USCIS filings, you should follow the instructions on the form and provide all required documentation and evidence to support your claim for withholding of removal. This may include evidence that you would face harm if removed to your home country, such as past persecution or a well-founded fear of future persecution based on race, religion, nationality, political opinion, or membership in a particular social group.

If you are already in removal proceedings in immigration court, you can request withholding of removal as a defense against deportation by presenting evidence and arguments to an immigration judge. You may also choose to be represented by an immigration attorney who can assist you with preparing and presenting your case.

It is important to note that withholding of removal is only available if you are physically present in the United States. If you are outside the U.S. and facing potential harm in your home country, you may be eligible for protection under the Convention Against Torture (CAT). In this case, you should apply for CAT protection directly with USCIS or raise it as a defense in immigration court proceedings.

It is recommended that you seek guidance from an experienced immigration attorney before submitting any applications or making any requests for relief from deportation.

5. Is there a filing fee for Withholding of Removal?

Yes, there is a filing fee for Withholding of Removal. The current fee for this application is $230, which must be submitted with the application. However, applicants who are unable to pay the fee may request a waiver by completing Form I-912, Request for Fee Waiver.

6. What are the differences between asylum and Withholding of Removal?

Asylum and Withholding of Removal are two forms of protection available to individuals who have a legitimate fear of persecution in their home country. While both forms of relief are similar in that they provide protection from deportation, there are some key differences between the two.

1. Legal Basis
Asylum is granted under international law by the United Nations 1951 Refugee Convention and its 1967 Protocol, as well as the Immigration and Nationality Act (INA) in the United States. It is a discretionary form of relief, meaning that it is up to the government’s discretion whether or not to grant asylum.

Withholding of Removal is provided for under U.S. immigration law through section 241(b)(3) of the Immigration and Nationality Act (INA). Unlike asylum, withholding of removal is a mandatory form of relief, meaning that if an individual meets the eligibility criteria, they must be granted this relief.

2. Eligibility Criteria
To be eligible for asylum, an individual must demonstrate a well-founded fear of persecution on account of race, religion, nationality, political opinion, or membership in a particular social group. They must also apply within one year of entering the United States.

The eligibility criteria for withholding of removal is stricter as an individual must prove that it is more likely than not that they will face persecution if returned to their home country. The basis for persecution does not have to fall into one of the five protected categories like with asylum.

Additionally, unlike asylum which has a one-year deadline for application, there is no time limit on when an individual can apply for withholding of removal.

3. Travel and Residency Restrictions
Individuals granted asylum have the ability to travel outside of the United States with permission from U.S. Citizenship and Immigration Services (USCIS). They may also be eligible for permanent residency after one year through adjustment of status.

On the other hand, individuals granted withholding of removal cannot travel outside of the United States and are not eligible for permanent residency through adjustment of status. However, they may be able to obtain temporary permission to work in the U.S. through an Employment Authorization Document (EAD).

4. Protection from Deportation
Asylum provides full protection from deportation, meaning that an individual cannot be removed or forced to return to their home country unless they commit a serious crime or pose a threat to national security.

Withholding of removal only provides protection from being returned to a specific country where an individual has been found to face persecution. This means that if an individual is found to be eligible for withholding of removal but is not at risk of harm in any other country, they could still potentially be deported.

5. Future Benefits
Individuals granted asylum are eligible for several benefits including but not limited to, access to certain government benefits, employment authorization, and the ability to apply for permanent residency after one year.

Withholding of removal does not provide as many future benefits as asylum. As mentioned earlier, individuals cannot apply for permanent residency through adjustment of status and there are also limitations on work authorization.

Overall, while both forms of relief offer some level of protection from persecution, asylum provides more long-term benefits and opportunities for individuals who have experienced persecution in their home countries. Withholding of removal offers much more limited options but can still provide temporary relief from return to a dangerous situation.

7. How long does it take for the USCIS to make a decision on my Withholding of Removal application?

The USCIS does not process applications for Withholding of Removal, as this benefit is only available through the Executive Office for Immigration Review (EOIR). The timeframe for making a decision on a Withholding of Removal application can vary depending on individual circumstances and the backlog of cases at the particular immigration court handling the case. It is recommended to consult with an experienced immigration attorney for more specific information about processing times for your particular situation.

8. Can I be deported after receiving approval for Withholding of Removal?

Yes, it is possible to be deported after receiving approval for Withholding of Removal. This is because Withholding of Removal does not provide permanent status or a pathway to citizenship like asylum does. It only protects you from being removed to a specific country where your life or freedom would be in danger. If the conditions in that country change, or if you commit certain crimes or become a security risk, you could still face removal. Additionally, Withholding of Removal does not allow for travel outside of the United States. If you leave the country for any reason, including emergency travel, you could lose your protected status and face removal upon reentering the United States.

9. What evidence is needed to prove eligibility for Withholding of Removal?

To prove eligibility for Withholding of Removal, an individual must provide:

1. Evidence of the individual’s nationality and citizenship.

2. Evidence that the individual would be subject to persecution if removed to their country of origin. This can include personal statements, witness testimonies, and documentary evidence such as news articles, country reports, or government documents.

3. Evidence that the persecution is based on one or more of the protected grounds: race, religion, nationality, political opinion, or membership in a particular social group.

4. Evidence that the harm or fear of harm is at the hands of the government or a group that the government is unable or unwilling to control.

5. Evidence that there are no available internal relocation options within the individual’s country of origin where they would not be at risk of persecution.

6. Evidence that the individual has been present in the United States for at least one year prior to filing for withholding of removal (unless exceptional circumstances exist).

7. Evidence that they have not been involved in certain criminal activities or pose a threat to national security.

8. A declaration or affidavit from the individual themselves describing their personal story and why they fear persecution if returned to their country.

9. Any relevant medical records or psychological evaluations documenting any physical or mental trauma suffered by the individual due to past persecution or fear of future persecution.

10. Any other relevant documents or evidence that supports their claim for withholding of removal.

10. Is there a deadline to file for Withholding of Removal?

There is no specific deadline to file for Withholding of Removal. However, it is recommended to submit the application as soon as possible after becoming eligible, as delays could potentially harm the applicant’s case. Additionally, late filings may be viewed less favorably by immigration authorities. It is best to consult with an experienced immigration attorney for guidance on when to file for Withholding of Removal.

11. Does Withholding of Removal expire and, if so, how often must it be renewed?

Yes, Withholding of Removal does expire and must be renewed every year by submitting an application for renewal to the U.S. Citizenship and Immigration Services (USCIS). This process is known as “re-registration” and must be done within 90 days before the current status expires. Failure to re-register on time may result in loss of protection and potential deportation.

12. Does approved Withholding of Removal provide permanent residency or citizenship in the US?

No, approved Withholding of Removal does not provide permanent residency or citizenship in the US. It only allows an individual to remain in the US and work legally for a certain period of time, but it does not offer a direct path to obtaining a green card or citizenship.

13. Are spouses and children eligible to be included in an approved Withholding of Removal petition?

Yes, spouses and children under the age of 21 are eligible to be included in an approved Withholding of Removal petition.

14. Can I travel outside the US if I have been granted Withholding of Removal?

Withholding of Removal is a form of immigration relief that prevents an individual from being removed from the United States to a specific country where they may face persecution or harm. It does not grant permission to travel outside the US. If you have been granted Withholding of Removal, you should consult with an immigration attorney before making any travel plans. Depending on your individual circumstances and the terms of your Withholding of Removal, it may be possible to obtain permission for short-term travel through advance parole or other legal means. However, leaving the US without proper authorization could result in revocation of your Withholding of Removal and potential deportation. It is always best to seek guidance from an experienced immigration lawyer before traveling outside the US while under any type of immigration status.

15. Can I apply for work authorization under Withholding of Removal status?

No, work authorization is not available for individuals with withheld removal under the Immigration and Nationality Act. However, you may be eligible to apply for an Employment Authorization Document (EAD) if you have also filed an application for asylum.

16. What types of relief are available to those granted Withholding of Removal?

17. The main forms of relief available to those granted Withholding of Removal are:
– Protection from deportation to their home country
– Authorization for employment in the United States
– Possible eligibility for certain government benefits, such as health care and education
It is important to note that unlike asylum, withholding of removal does not provide a path to permanent residency or citizenship. It is also not a guarantee of permanent protection from deportation, as it can be revoked if conditions in the home country change significantly. Additionally, individuals granted withholding of removal cannot travel outside of the United States without risking being barred re-entry.

18. Can someone with Withholding of Removal apply for permanent residency?
19. No, someone granted Withholding of Removal cannot directly apply for permanent residency. However, they may be able to apply for other forms of relief that could lead to permanent residency, such as adjustment of status or cancellation of removal. This process is complex and requires assistance from an experienced immigration attorney.

17. What happens if my application for Withholding of Removal is denied?

If your application for Withholding of Removal is denied, you may be subject to removal from the United States. You will still have the opportunity to appeal the decision and present your case in front of an immigration judge. It is important to consult with an immigration attorney immediately if your application is denied so you can explore all available options.

18. Can I appeal a denial of my application for Withholding of Removal?

Yes, you may appeal a denial of your application for Withholding of Removal within 30 days after receiving the denial. You will need to file Form EOIR-26 with the Board of Immigration Appeals (BIA) and pay any required fees. It is recommended that you seek the assistance of an immigration attorney for your appeal.

19. Are there any special forms that I need to submit with my application for Withholding of Removal?

Yes, you will need to submit Form I-589 – Application for Asylum and Withholding of Removal, along with any supporting documents or evidence to support your claim for withholding of removal. You may also be required to submit additional forms or documents, depending on your individual case and the guidance provided by the immigration authorities. It is recommended that you consult with an immigration attorney for specific guidance on your application.

20. Are there any criminal convictions that would disqualify me from receiving approval for Withholding of Removal?

Yes, certain criminal convictions can disqualify you from receiving approval for Withholding of Removal. These include convictions for particularly serious crimes, such as murder, aggravated felony offenses, and crimes involving torture or genocide. It is best to consult with an immigration attorney to determine if any of your criminal convictions would affect your eligibility for Withholding of Removal.