An Overview of Withholding of Removal

Withholding of removal under U.S. immigration law and the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) is a form of relief from deportation available to noncitizens. This form of relief is typically requested by someone who is not eligible for asylum. To learn more about asylum, read An Overview of Asylum.

Withholding of Removal under U.S. Immigration Law

Eligibility

In order to be granted withholding of removal under U.S. immigration law, you must establish that if you are deported to your home country, your life or freedom would be threatened based on one of the following:

• Race

• Religion

• Nationality

• Political opinion (this could be an actual political opinion you have or one the persecutors believe you have)

• Membership in a certain social group (sharing a common characteristic that is such a part of your individual identity that you cannot or should not change it, like being gay or a member of a specific tribe)

If you have suffered past persecution (been jailed, beaten, and/or tortured) based on one of those reasons, it is presumed that your life or freedom would be threatened if you are deported to your home country. If you were not persecuted, you need to establish that it is more likely than not that your life or freedom will be threatened if deported. This burden of proof is higher than with asylum. To learn more, read Finding Country Conditions Evidence for Immigration Cases.

A grant of withholding of removal is mandatory, meaning as long as you meet the burden of proof, the immigration judge (IJ) should grant your application. If granted, you will not be deported to your home country. However, it is possible that you could be deported to a different, safe country. If you are allowed to stay in the U.S., you will get permission to work.

Withholding of removal does not offer derivative status for family members. This means your family cannot come to the U.S. based on your status.

Bars from a Grant of Withholding of Removal

There are certain reasons (bars) why people will not get withholding of removal. You can be barred if you are in any of these categories:

• You participated or helped in the persecution of others

• You pose a security threat to the U.S.

• You were convicted of a “particularly serious crime” (PSC)

• You committed a “serious nonpolitical crime” (SNC)

Most aggravated felonies, like drug offenses and violent crimes, are considered PSCs. Being charged with a PSC is not enough to bar you from withholding of removal; you must be convicted of the crime.

An SNC is less serious than a PSC. You do not have to have been convicted of the crime for the bar to apply. However, there must be probable cause (a reasonable belief based on facts) that you committed the crime in order for the bar to apply.

When there are criminal issues in immigration cases, it is very important to talk to an experienced immigration lawyer. Not all criminal defense lawyers know about immigration law. If you or someone you know has an issue involving both criminal and immigration law, you should talk to an immigration lawyer. Use the Guide to Legal Help to find immigration lawyers and legal services in your area.

Withholding of Removal under CAT

A noncitizen might be able to get relief under CAT. The U.S. is a signatory of CAT, meaning it agrees not to deport a noncitizen to a country where there are substantial grounds for believing that person would be tortured. Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person.

Eligibility

In order to be granted withholding of removal under CAT, you must prove that you will be tortured for any of the following reasons:

• To get information or a confession from you or another person

• To punish you or another person

• To intimidate you or another person

• For any other reason based on discrimination

The torture must be committed, encouraged, or known (including being “willfully blind”) by a public official or someone acting on behalf of the government. You must prove that it is more likely than not that you will be tortured if you are deported to your home country. This can be hard to prove. To learn more, read Finding Country Conditions Evidence for Immigration Cases.

A grant of withholding of removal under CAT is mandatory, meaning as long as you meet the burden of proof, the IJ should grant your application. If granted, you will not be deported to your home country. However, it is possible that you could be deported to a different, safe country. If you are allowed to stay in the U.S., you will get permission to work.

Withholding of removal under CAT does not offer derivative status for family members This means your family cannot come to the U.S. based on your status.

Bars from a Grant of Withholding of Removal under CAT

There are certain reasons (bars) why people will not get withholding of removal. You can be barred if you are in any of these categories:

• You participated or helped in the persecution of others

• You pose a security danger to the U.S.

• You were convicted of a PSC

• You committed an SNC

Most aggravated felonies, like drug offenses and violent crimes, are considered PSCs. Being charged with a PSC is not enough to bar you from withholding of removal; you must be convicted of the crime.

A SNC is less serious than a PSC. You do not have to have been convicted of the crime in order for the bar to apply. However, there must be probable cause (a reasonable belief based on facts) that you committed the crime in order for the bar to apply.

When there are criminal issues in immigration cases, it is very important to talk to an experienced immigration lawyer. Not all criminal defense lawyers know about immigration law. If you or someone you know has an issue involving both criminal and immigration law, you should talk to an immigration lawyer. Use the Guide to Legal Help to find immigration lawyers and legal services in your area.

Applying for Withholding of Removal

To apply for withholding of removal under U.S. immigration law or CAT, you need to file Form I-589, Application for Asylum and Withholding of Removal with USCIS. Although USCIS offers instructions, applying for withholding of removal is complex. You should strongly consider speaking with an immigration lawyer before you file anything. Use the Guide to Legal Help to find immigration lawyers and legal services in your area.

There is no filing fee for your application, and there is no filing deadline you have to meet. Typically, people ask for withholding of removal under U.S. immigration law and CAT at the same time they apply for asylum. If you applied affirmatively for asylum and both types of withholding of removal with USCIS and your asylum claim is denied, USCIS will refer your case to an IJ in immigration court. You will receive a Notice to Appear that will tell you when and where your first hearing will be. To learn more about the asylum process, read An Overview of Asylum.

During the hearings, you (or your lawyer) need to show that it is more likely than not that your life or freedom will be threatened if you are returned to your home country (U.S. immigration law) or will be tortured (CAT). A lawyer for U.S. Immigration and Customs Enforcement (ICE) will try to prove you are not eligible for withholding of removal and you can safely be deported to your home country. To learn more about what to expect during deportation proceedings, read Detention and Deportation.

The IJ will make a decision based on the evidence presented during your hearings. Even if you are granted withholding of removal, you can still be deported to another safe country. If your application is denied, you could file an appeal with the Board of Immigration Appeals (BIA). To learn more about the appellate process, read the “Immigration Courts” section of Immigration Basics: Status, Law, Agencies, and Courts.