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What is withholding of removal?

Withholding of removal is a special type of order issued by an immigration judge to a person who demonstrates more than a 50% chance that they will be persecuted in their home country on account of their race, religion, nationality, membership in a particular social group, or political opinion. Like asylum, withholding of removal protects a person from being deported to a country where they fear persecution. However, withholding of removal is a very limited benefit in many ways.  (See below for more details).

How do I apply for withholding of removal?

Applications for withholding of removal are made on the same form as asylum applications (form I-589) and are made simultaneously with the asylum application. However, while either an asylum officer or an immigration judge can grant asylum, only an immigration judge hearing a case for someone in removal proceedings can grant withholding of removal.

What is the benefit of being granted withholding of removal? How is it different from being granted asylum?

Most importantly, a person who is granted withholding of removal is protected from being deported to the country where they fear persecution. However, withholding of removal is inferior to asylum in several important ways.

  1. A person granted withholding of removal has no pathway to a green card or to U.S. citizenship.  Because an order of removal was issued, and then withheld, in most cases a person would have to reopen their removal proceedings in order to pursue other immigration options.  Warning: it is important to consult with an immigration attorney before reopening a withholding case.  While it may well be worth the risk to do so, reopening the case may also jeopardize the initial grant of withholding of removal.  This could then result in the threat of actual deportation.   
  2. A person granted withholding of removal is required to pay a yearly renewal fee for an employment authorization document in order to maintain the legal right to work in the United States.
  3. People granted withholding are eligible to receive some, but not all, of the same government benefits as asylees.
  4. A person granted withholding of removal cannot travel outside of the United States.  If they do, they are considered to have self deported and the order of removal the immigration judge issued will go into effect.  This will make it very unlikely for that person to re-enter the United States. 
  5. The government retains the legal right to deport people granted withholding of removal to a country other than the one from which they were granted withholding of removal. Practically speaking, this type of deportation to a third country is  rare. However, Immigration and Customs Enforcement frequently issues “Orders of Supervision” that require people granted withholding  “to check-in” regularly with immigration either in person or by phone, and to request prior permission before leaving the state. These required check-ins can sometimes last for years, or for forever. 
  6. For people who are granted withholding of removal while being incarcerated in an immigration detention facility, Immigration and Customs Enforcement will sometimes choose to continue to detain that person even after they have won their case. In most cases, this type of continued detention is improper and contrary to longstanding internal ICE policy that favors release for these individuals. See Immigrant Justice’s Field Guidance Reminder (PDF, external site). LGBT people who continue to be detained even after being granted withholding of removal should contact Immigration Equality.

Why would anyone apply for withholding of removal if winning it is so much less useful than winning asylum?

Generally, when a person files for asylum, they automatically apply for withholding at the same time. There is no one-year filing deadline for withholding applications, and it is not discretionary.  That is, if someone proves that they are eligible for withholding, a judge must grant that application. There are also certain crimes which may disqualify applicants from winning asylum, but do not disqualify them from withholding of removal.

What is relief under the Convention against Torture (CAT)?

Convention against Torture relief, commonly called CAT, is an extremely rare grant of protection from deportation that an immigration judge grants for individuals who fear torture in their home country. To qualify for CAT, an applicant must demonstrate a clear probability (more than a 5o% chance) that they will be tortured either directly by or with the acquiescence of the government of their country of origin. This is an extremely difficult legal showing to make, and consequently, only about 2-3% of all applications for CAT are granted across the country.

Why would anyone apply for relief under CAT if it is so difficult to obtain?

Certain individuals are legally ineligible for both asylum with withholding of removal, and relief under the Convention against Torture (“CAT”) is the only chance they have to remain in this country. Most commonly, this occurs when an individual has been convicted of a “particularly serious crime” in the United States. People who have been sentenced to a combined total of 5 or more years of imprisonment for convictions for “aggravated felonies,” and people who have criminal convictions related to selling drugs are almost always considered to have committed a particularly serious crime. Other types of criminal convictions that may be considered “particularly serious crimes” are those that involve significant violence, harm, or a serious risk of injury to others. Other factors that may make a person eligible only for CAT include commission of a “serious nonpolitical crime” outside of the United States, persecution of others,or participation or support of terrorist groups.

Almost all people who qualify only for CAT are subject to mandatory detention during the course of their removal proceedings, meaning that they do not qualify to be released from immigration detention on parole or after paying a bond. In some instances, the U.S. government will continue to detain an individual even after they have been granted CAT if the government consider them to be a danger to the community. LGBT individuals who have been granted CAT but remain in immigration detention may contact Immigration Equality to inquire if we are able to assist in securing release.

How do I apply for CAT relief?

Most individuals who apply for asylum and withholding apply for CAT at the same time. Like applicants for asylum and withholding of removal, CAT applicants must complete Form I-589. To apply for CAT, the individual must check off the box on the first page of the I-589 Form indicating that the person intends to apply for CAT. Even with extensive supporting evidence, a skilled attorney, and expert witnesses, CAT applications are often routinely denied because of the extremely high legal standard that applicants must meet.