3 Situations Where Withholding of Removal Applies and Asylum Does Not

Persons facing possible deportation in immigration court in the US and who fear that they will be persecuted if they are returned to their country can qualify for asylum in the US or for what is referred to as withholding of removal as long as certain conditions are met. The two forms of relief from deportation are similar but important differences exist. A different burden of proof exists to qualify for asylum and withholding of removal, with asylum being much easier to get. A deportation lawyer is often asked how withholding of removal can help someone if it is basically the same as asylum but is harder to qualify for – this article describes three circumstances in which withholding of removal may apply where asylum may not. Persons facing possible deportation should contact a deportation attorney for immigration advice. A deportation lawyer can help you understand your options and defend you from deportation in immigration court. A Dallas immigration lawyer with the law firm Heartland Immigration can represent you in any immigration court, anywhere in the country. Contact Heartland Immigration for a free immigration consultation: 1-855-USA-IMMIGRATE

Brief Overview of Asylum and Withholding of Removal – An Important Difference Discussed

Both asylum and withholding of removal can help a person avoid deportation where a person could be persecuted or, in the withholding of removal context, if their "life or freedom would be threatened," on account of (i) race, (ii) religion, (iii) nationality, (iv) membership in a particular social group, or (v) political opinion if they are deported to their country. A key difference between the two forms of relief from deportation is what one must show in order to qualify for the relief and avoid deportation in the way of the likelihood that they will be persecuted or have their life/freedom threatened. In deportation lawyer terms, a "higher burden of proof" exists for avoiding deportation through withholding of removal than through asylum. Namely, to qualify for asylum in the US a person facing possible deportation only has to convince the judge in immigration court that they have a "well-founded fear" of persecution on the basis of one of the five qualifying grounds, as where an individual has to demonstrate that it is "more likely than not" that they will be persecuted in order to avoid deportation by way of withholding of removal. The standard for qualifying for withholding of removal has been considered a "clear probability" standard, meaning the person trying to avoid deportation by qualifying for it has to convince the immigration court judge that it really is likely they will be persecuted if deported.

Three circumstances where withholding of removal can save the day

Withholding of removal is often granted in the following three circumstances, under which asylum is not an option. A person can sometimes avoid deportation through withholding of removal despite not qualifying for asylum in the US where:

1. The person facing possible deportation has been in the US over a year. An individual who has been in the United States for over a year generally cannot qualify for asylum in the US. Asylum is normally limited to persons who bring their claim for asylum in the US, whether affirmatively before the US Citizenship and Immigration Services (USCIS) or defensively in immigration court in the deportation setting, within one year of entering the United States. This bar on asylum catches many US asylum seekers by surprise – every experienced asylum attorney has had a person approach them who would otherwise qualify for asylum in the US but who cannot receive a grant of asylum due to the rule that an asylum seeker must apply for asylum within one year of entering the United States. By contrast, withholding of removal carries with it no such requirement – a petition for withholding of removal can be brought at any time. This means that someone seeking to avoid deportation by receiving a grant of withholding of removal can make this claim in immigration court no matter how long they have been in the US.
2. Certain crimes make the individual ineligible for asylum but not for a grant of withholding of removal. Statutory bars exist that can make a person ineligible to receive a grant of asylum in the US or a grant of withholding of removal. The commission of certain crimes is a major reason why many seekers of asylum and withholding of removal cannot qualify for this relief from deportation. This comes into play with respect to a conviction of a "particularly serious crime." A particularly serious crime conviction in one's past will make the person ineligible for both asylum and withholding of removal, but what counts as a particularly serious crime changes depending on the relief being sought. Put differently, what is considered a particularly serious crime in one setting is not considered a particularly serious crime in the other; an "aggravated felony" is always a particularly serious crime in the asylum analysis, as where the decision of whether an aggravated felony is a particularly serious crime is made on a case-by-case basis when withholding of removal is at issue. Some aggravated felonies, as that term is used in US immigration law, count as a particularly serious crime for withholding of removal purposes but some do not. This means that a person facing possible deportation who has been convicted of an immigration law aggravated felony might still be eligible for withholding of removal (depending on the circumstances), but will not be able to get asylum in the US. What constitutes an aggravated felony for US immigration law purposes is anything but clear, and whether an aggravated felony is considered a particularly serious crime in the withholding of removal context is likewise sometimes murky. Individuals who think an aggravated felony or a particularly serious crime may be at issue in their deportation proceeding should contact a deportation lawyer for immigration guidance.
3. The person is denied asylum on "discretionary" grounds but meets the statutory requirements for withholding of removal. A person who technically qualifies for asylum under the letter of the law can still have their application for asylum denied by the judge in immigration court – an immigration judge has discretion to deny an asylum application even where a well-founded fear of persecution based on one of the five qualifying grounds is established. This happens sometimes where the person facing possible deportation has committed several crimes or otherwise done something that makes the judge in immigration court think the person simply should not be able to benefit from asylum in the US. In the withholding of removal context, this discretion does not exist – a person who meets the statutory requirements for withholding of removal must have their application for it granted. The judge in immigration court cannot decide not to grant the request if the person is qualified for withholding of removal under US immigration law.

Individuals in immigration court facing possible deportation should speak with a deportation attorney as soon as possible to get deportation defense. An experienced deportation lawyer can help you navigate the exceptionally complex waters of US immigration law in your deportation proceedings. A Heartland Immigration deportation attorney can represent you anywhere in the United States in immigration court. Get in touch to schedule an immigration lawyer free consultation or call a Heartland Immigration lawyer today to discuss your immigration situation: 1-855-USA-IMMIGRATE