Asylum for everyone in need

Asylum is a protection granted to foreign nationals already in the United States or at the border who meet the international definition of a “refugee.” The United Nations 1951 Convention and 1967 Protocols defines a refugee as a person who is unable or unwilling to return to his or her home country, and cannot obtain protection in that country, due to past persecution or a well-founded fear of being persecuted “on account of race, religion, nationality, membership in a particular social group, or political opinion.” Congress incorporated this definition into U.S. immigration law in the Refugee Act of 1980. As a signatory to the 1967 Protocol, and through U.S. immigration law, the United States has legal obligations to provide protection and certain rights to those who qualify as refugees. The Refugee Act established two paths to obtain refugee status—either from abroad as a resettled refugee or in the United States as an asylum-seeker.

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.

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.

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.

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.