Withholding of Removal Attorney

While the Refugee Act adopts the well-founded fear standard, the standard for withholding of removal adopts the probability of harm standard. INA §241(b)(3). This section of the law is based on Article 33 of the Protocol and allows relief if the applicant’s life would be threatened if returned to his or her country. Withholding provides a mandatory prohibition against removal if the person’s life would be threatened for a protected ground. Popova v. INS, 273 F.3d 1251 (9th Cir. 2001).

A finding of past persecution establishes a well-founded fear of future persecution for withholding of removal purposes. If the person does not show past persecution, then he must demonstrate that it is more than likely that he will be persecuted on a protected ground. 8 CFR §208.16(b)(2). If the person fails to show that relocation is unreasonable, then he would not meet the criteria for withholding. 8 CFR §1208.16(b)(2). If relocation is found to be reasonable, then the applicant must show that it Is not. 8 CFR §1208.16(b)(3)(i). If the showing of relocation is rebutted, then the immigration judge must consider the same criteria for relocation under asylum. 8 CFR §1208.16(b)(3).

USCIS may not consider withholding since it is only a defense to removal. 8 CFR §208.16(a). Withholding of removal does not allow for derivative status, and the judge must find removability to grant withholding. Matter of I-S- & C-S-, 24 I&N Dec. 432 (BIA 2008).

Under INA §241 (b)3)(B), there are bars to Withholding of Removal. These bars include:

  • Nazism or Genocide
  • Persecution of others under INA §241 (b)3)(B)(i) a person who has ordered the persecution of others on a protracted ground may not qualify for withholding of removal. Matter of A-H-, 23 I&N Dec. 774, 783-85 (AG 2005).
  • Particularly serious crime and danger to the community:
    • Aggravated felonies where more than 5 years sentence was imposed
    • All other crimes where the person is a danger to the community. The Board has relied on the criteria in Matter of Frentescu, 18 I&N Dec. 224, 247 (BIA 1982). In more recent decisions however, the Board has moved away from these factors. In the Ninth Circuit, a person must be convicted of an aggravated felony for the crime to be particularly serious.

We understand that applying for asylum and withholding of removal is a serious matter. Your life could literally depend on the result. Call us today for help applying for such relief.

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