What is withholding of removal and how might it help me stay in the United States? Hi, I’m Jim Hacking, immigration attorney practicing law here in St. Louis, Missouri. Back in 1980, Congress passed a law that included provisions that prohibited the Attorney General from removing people to their home country if they can show a clear probability that they’re going to face persecution, and this concept came to be known as withholding of removal. A lot of people are familiar with the asylum and they’re not so familiar with withholding of removal, and the reason for that is that a lot more people get asylum than get withholding of removal.
Withholding of removal has a higher legal standard than asylum. It basically prohibits the Attorney General, the Department of Homeland Security, from deporting people back to their home country if they can show they have a “clear probability” of facing persecution for the types of reasons that we see in asylum: race, national origin, political views, those kinds of things. Withholding doesn’t really come into play unless the alien, perhaps, has missed their asylum deadline. Typically you’ll include a claim for withholding as defense to deportation along with asylum, but asylum is an easier standard. You just have to show a well-founded fear of persecution.
In withholding, you have to demonstrate to the immigration judge that there’s a clear probability of persecution, and that’s a harder standard. Think of withholding this way: withholding of removal means that you are removable and they would remove you if you couldn’t show that clear persecution if you return home. It’s a higher standard and there’s a couple other problems with withholding which make it not as attractive as asylum. One is that withholding does not provide you with a basis to adjust status to that of lawful permanent residence. In asylum you can get your green card, you can become an LPR, but there’s no such provision in withholding.
It’s really just, “Hey, you’re going to get to stay in the country and we’re not going to deport you, but that’s it, that’s all we’re going to do for you. We’re not going to give you a path to citizenship or any other benefits.” The other problem with withholding is that the person seeking withholding or who receives withholding does not get to bestow any derivative benefits on anyone else. Now what does that mean? That means that if a husband gets withholding, that does not grant any kind of immigration status on a spouse or a child. It really is just you hanging around in the United States without getting deported, and that’s the benefit that you get.
You always want to make that one-year asylum deadline so that you’re not relying solely on withholding. Many of the arguments you’d make in support of asylum would also go to withholding, but because it’s a lower standard, asylum is, again, more attractive. If you have any questions about withholding of removal, or if you’re facing deportation, or a loved one is in removal proceedings, please feel free to give us call: 314-961-8200, or you can email me at: [email protected]. Thanks and have a good day.