Withholding of removal the booby-prize of immigration status
 

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Withholding of removal (WOR) is the last bastion of the desperate alien.

Withholding of removal (WOR) is the last bastion of the desperate alien.

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Withholding of removal the booby-prize of immigration status Document Transcript

  • 1. Withholding of Removal (WOR)-The “Booby-Prize” of Immigration Status1Withholding of removal is the last bastion of the desperate. It is given to someone who has beenfound to be removable and has been ordered removed. However, in its beneficence and out ofpity, the U.S. exercises discretion in the alien’s favor only because removing that alien would“more likely than not” result in either: persecution, torture, or death. Depending on the individualcircumstances, the alien could be kept detained for a long period of time or even indefinitely,interrupted only by periodic trips to Immigration Court for a bond hearing or re-determination.Most WOR recipients do get released and are allowed to obtain work authorization. The I-765 isfiled and the category is (a)(10). There is NO FEE for the EAD but it is issued only one year at atime. Why is this? It is so DHS can keep tabs on the WOR recipient so, if and when, anopportunity to remove the alien should arise, ICE knows where to find the person to be removed. 8 CFR § 274a.13 Application for employment authorization. (b) Approval of application. If the application is granted, the alien shall be notified of the decision and issued a[] [DHS/USCIS] employment authorization document valid for a specific period and subject to any terms and conditions as noted. [Emphasis added.] 8 CFR § 274a.12 Classes of aliens authorized to accept employment. (a) Aliens authorized employment incident to status. Pursuant to the statutory or regulatory reference cited, the following classes of aliens are authorized to be employed in the United States without restrictions as to location or type of employment as a condition of their admission or subsequent change to one of the indicated classes. Any alien who is within a class of aliens described in paragraphs (a)(3), (a)(4), (a)(6)–(a)(8), (a)(10)–(a)(15), or (a)(20) of this section, and who seeks to be employed in the United States, must apply to U.S. Citizenship and Immigration Services (USCIS) for a document evidencing such employment authorization. USCIS may, in its discretion, determine the validity period assigned to any document issued evidencing an aliens authorization to work in the United States.[Emphasis added.] ***** (10) An alien granted withholding of deportation or removal for the period of time in that status, as evidenced by an employment authorization document issued by [USCIS];Theoretically, DHS can pursue removal to a suitable third country that is willing to accept thealien. This is usually only even attempted in extreme cases, such as “career criminals”. Lastly, ifcircumstances change in the original intended country of removal, then the underlying Order ofRemoval can be carried out at that time.WOR does not lead to an opportunity to file for adjustment of status. Even if the WOR recipientis petitioned at some point by a relative or employer, they cannot adjust because there is alreadyan administratively final Order of Removal in place. This fact alone bars adjustment. Then the1 Begrudgingly, perhaps Deferral under CAT is even less desirable but they are almost the same, see page 12.Comments on Withholding of Removal (WOR) Page 1
  • 2. question remains as to the underlying reason for that Order of Removal. Could it ever beovercome or waived? In addition, has the alien at some point been out of status for a sufficientlength of time to become subject to the unlawful presence bar? If the WOR recipient eventuallydeparts the U.S. by any means, they might or might not once again become eligible for anImmigrant Visa at some point in the future. This remote possibility is exceedingly individualizedand highly speculative at best.Certain bars to admissibility can be overcome by the mere passage of time and others can bewaived. However, all final determinations are arrived at on a case-by-case basis through anindividualized analysis of specific facts to the controlling law. It is highly speculative to makeany predictions on one’s chances at attaining relief. Any further relief, beyond WOR for anyalien relies upon a favorable exercise of discretion based on balancing positive and negativeequities in each and every individual case.There has been some chatter lately about WOR and driver’s licenses. This is especially aproblem in Virginia. VA does not accept an EAD as proof of lawful status in the U.S. Some havespeculated that inevitable lawsuits will overturn this situation. I am not so optimistic about thatpossibility. It may turn out to be a compromise for WOR EAD’s under category (a)(10) andperhaps certain other categories of EADs, along with a State-imposed requirement to renew thelicense annually in conjunction with the annual renewal of the EAD. Maybe the State DMVscould have some kind of renewal stickers made that they could use for these and “other restricteddrivers”? Further investigation is probably in order on this topic for some zealot to take uponhim or herself. Start a petition to the Governors and/or state legislatures. [This is the end of the bulk of this article—the rest is MAINLY for easy reference.]8 CFR § 1208.16 Withholding of removal under section 241(b)(3)(B) of the Act andwithholding of removal under the Convention Against Torture.(a) Consideration of application for withholding of removal. An asylum officer shall not decidewhether the exclusion, deportation, or removal of an alien to a country where the aliens life orfreedom would be threatened must be withheld, except in the case of an alien who is otherwiseeligible for asylum but is precluded from being granted such status due solely to section207(a)(5) of the Act. In exclusion, deportation, or removal proceedings, an immigration judgemay adjudicate both an asylum claim and a request for withholding of removal whether or notasylum is granted.(b) Eligibility for withholding of removal under section 241(b)(3) of the Act; burden of proof.The burden of proof is on the applicant for withholding of removal under section 241(b)(3) of theAct …….(f) Removal to third country. Nothing in this section or §1208.17 shall prevent the Service fromremoving an alien to a third country other than the country to which removal has been withheldor deferred.Comments on Withholding of Removal (WOR) Page 2
  • 3. INA § 241(b)(3) Detention And Removal Of Aliens Ordered Removed(b) Countries to Which Aliens May Be Removed.- (3) Restriction on removal to a country where aliens life or freedom would be threatened.- (A) In general.-Notwithstanding paragraphs (1) and (2), the Attorney General may not remove an alien to a country if the Attorney General decides that the aliens life or freedom would be threatened in that country because of the aliens race, religion, nationality, membership in a particular social group, or political opinion. (B) Exception.-Subparagraph (A) does not apply to an alien deportable under section 237(a)(4)(D) or if the Attorney General decides that- [There can be some overlap.] (i) the alien ordered, incited, assisted, or otherwise participated in the persecution of an individual because of the individuals race, religion, nationality, membership in a particular social group, or political opinion; [Persecution of others, can encompass genocide and extrajudicial killings.] (ii) the alien, having been convicted by a final judgment of a particularly serious crime, is a danger to the community of the United States; (iii) there are serious reasons to believe that the alien committed a serious nonpolitical crime outside the United States before the alien arrived in the United States; or [Genocide, serious crimes abroad (violence, drugs, ???) or extrajudicial killings.] (iv) there are reasonable grounds to believe that the alien is a danger to the security of the United States. [Terrorism (actual threat and support), espionage, public menace (public safety, threat to the community.)] (C) SUSTAINING BURDEN OF PROOF; CREDIBILITY DETERMINATIONS- In determining whether an alien has demonstrated that the aliens life or freedom would be threatened for a reason described in subparagraph (A), the trier of fact shall determine whether the alien has sustained the aliens burden of proof, and shall make credibility determinations, in the manner described in clauses (ii) and (iii) of section 208(b)(1)(B) . For purposes of clause (ii), an alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime. The previous sentence shall not preclude the Attorney General from determining that, notwithstanding the length of sentence imposed, an alien has been convicted of a particularly serious crime.Comments on Withholding of Removal (WOR) Page 3
  • 4. For purposes of clause (iv), an alien who is described in section 237(a)(4)(B) shall be considered to be an alien with respect to whom there are reasonable grounds for regarding as a danger to the security of the United States. The INA § cited in the above WOR regulation should NOT be read in isolation from the rest of that section or the rest of the INA in general.INA § 241 DETENTION AND REMOVAL OF ALIENS ORDERED REMOVED(a) Detention, Release, and Removal of Aliens Ordered Removed.- (1) Removal period.- (A) In general.-Except as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days (in this section referred to as the "removal period"). (B) Beginning of period.-The removal period begins on the latest of the following: (i) The date the order of removal becomes administratively final. (ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the courts final order. (iii) If the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement. (C) Suspension of period.-The removal period shall be extended beyond a period of 90 days and the alien may remain in detention during such extended period if the alien fails or refuses to make timely application in good faith for travel or other documents necessary to the aliens departure or conspires or acts to prevent the aliens removal subject to an order of removal. (2) Detention.-During the removal period, the Attorney General shall detain the alien. Under no circumstances during the removal period shall the Attorney General release an alien who has been found inadmissible under section 212(a)(2) or 212(a)(3)(B) or deportable under section 237(a)(2) or 237(a)(4)(B) . (3) Supervision after 90-day period.-If the alien does not leave or is not removed within the removal period, the alien, pending removal, shall be subject to supervision under regulations prescribed by the Attorney General. The regulations shall include provisions requiring the alien-Comments on Withholding of Removal (WOR) Page 4
  • 5. (A) to appear before an immigration officer periodically for identification; (B) to submit, if necessary, to a medical and psychiatric examination at the expense of the United States Government; (C) to give information under oath about the aliens nationality, circumstances, habits, associations, and activities, and other information the Attorney General considers appropriate; and (D) to obey reasonable written restrictions on the aliens conduct or activities that the Attorney General prescribes for the alien. (4) Aliens imprisoned, arrested, or on parole, supervised release, or probation.- (A) In general.-Except as provided in section 343(a) of the Public Health Service Act (42 U.S.C. 259(a)) and paragraph (2), the Attorney General may not remove an alien who is sentenced to imprisonment until the alien is released from imprisonment. Parole, supervised release, probation, or possibility of arrest or further imprisonment is not a reason to defer removal. (B) Exception for removal of nonviolent offenders prior to completion of sentence of imprisonment.-The Attorney General is authorized to remove an alien in accordance with applicable procedures under this Act before the alien has completed a sentence of imprisonment- (i) in the case of an alien in the custody of the Attorney General, if the Attorney General determines that (I) the alien is confined pursuant to a final conviction for a nonviolent offense (other than an offense related to smuggling or harboring of aliens or an offense described in section 101(a)(43)(B) , (C) , (E) , (I) , or (L) 2/ and (II) the removal of the alien is appropriate and in the best interest of the United States; or (ii) in the case of an alien in the custody of a State (or a political subdivision of a State), if the chief State official exercising authority with respect to the incarceration of the alien determines that (I) the alien is confined pursuant to a final conviction for a nonviolent offense (other than an offense described in section 101(a)(43)(C) or (E) ), (II) the removal is appropriate and in the best interest of the State, and (III) submits a written request to the Attorney General that such alien be so removed. (C) Notice.-Any alien removed pursuant to this paragraph shall be notified of the penalties under the laws of the United States relating to the reentry of deported aliens, particularly the expanded penalties for aliens removed under subparagraph (B).Comments on Withholding of Removal (WOR) Page 5
  • 6. (D) No private right.-No cause or claim may be asserted under this paragraph against any official of the United States or of any State to compel the release, removal, or consideration for release or removal of any alien. (5) Reinstatement of removal orders against aliens illegally reentering.-If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this Act, and the alien shall be removed under the prior order at any time after the reentry. (6) Inadmissible or criminal aliens.-An alien ordered removed who is inadmissible under section 212 , removable under section 237(a)(1)(C) , 237(a)(2) , or 237(a)(4) or who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (3). (7) Employment authorization.-No alien ordered removed shall be eligible to receive authorization to be employed in the United States unless the Attorney General makes a specific finding that- (A) the alien cannot be removed due to the refusal of all countries designated by the alien or under this section to receive the alien, or (B) the removal of the alien is otherwise impracticable or contrary to the public interest. 8 CFR § 274a.12 Classes of aliens authorized to accept employment. (a) Aliens authorized employment incident to status. Pursuant to the statutory or regulatory reference cited, the following classes of aliens are authorized to be employed in the United States without restrictions as to location or type of employment as a condition of their admission or subsequent change to one of the indicated classes. Any alien who is within a class of aliens described in paragraphs (a)(3), (a)(4), (a)(6)- (a)(8), (a)(10)-(a)(15), or (a)(20) of this section, and who seeks to be employed in the United States, must apply to U.S. Citizenship and Immigration Services (USCIS) for a document evidencing such employment authorization. USCIS may, in its discretion, determine the validity period assigned to any document issued evidencing an aliens authorization to work in the United States. (10) An alien granted withholding of deportation or removal for the period of time in that status, as evidenced by an employment authorization document issued by the Service;Comments on Withholding of Removal (WOR) Page 6
  • 7. (b) Countries to Which Aliens May Be Removed.- [Same (b) as above…] (1) Aliens arriving at the United States. - Subject to paragraph (3)- (A) In general.-Except as provided by subparagraphs (B) and (C), an alien who arrives at the United States and with respect to whom proceedings under section 240 were initiated at the time of such aliens arrival shall be removed to the country in which the alien boarded the vessel or aircraft on which the alien arrived in the United States. (B) Travel from contiguous territory.-If the alien boarded the vessel or aircraft on which the alien arrived in the United States in a foreign territory contiguous to the United States, an island adjacent to the United States, or an island adjacent to a foreign territory contiguous to the United States, and the alien is not a native, citizen, subject, or national of, or does not reside in, the territory or island, removal shall be to the country in which the alien boarded the vessel that transport ed the alien to the territory or island. (C) Alternative countries.-If the government of the country designated in subparagraph (A) or (B) is unwilling to accept the alien into that countrys territory, removal shall be to any of the following countries, as directed by the Attorney General: (i) The country of which the alien is a citizen, subject, or national. (ii) The country in which the alien was born. (iii) The country in which the alien has a residence. (iv) A country with a government that will accept the alien into the countrys territory if removal to each country described in a previous clause of this subparagraph is impracticable, inadvisable, or impossible. (2) Other aliens.-Subject to paragraph (3)- (A) Selection of country by alien.-Except as otherwise provided in this paragraph- (i) any alien not described in paragraph (1) who has been ordered removed may designate one country to which the alien wants to be removed, and (ii) the Attorney General shall remove the alien to the country the alien so designates. (B) Limitation on designation.-An alien may designate under subparagraph (A)(i) a foreign territory contiguous to the United States, an adjacent island, or an island adjacent to a foreign territory contiguous to the United States as the place toComments on Withholding of Removal (WOR) Page 7
  • 8. which the alien is to be removed only if the alien is a native, citizen, subject, or national of, or has resided in, that designated territory or island. (C) Disregarding designation.-The Attorney General may disregard a designation under subparagraph (A)(i) if- (i) the alien fails to designate a country promptly; (ii) the government of the country does not inform the Attorney General finally, within 30 days after the date the Attorney General first inquires, whether the government will accept the alien into the country; (iii) the government of the country is not willing to accept the alien into the country; or (iv) the Attorney General decides that removing the alien to the country is prejudicial to the United States. (D) Alternative country.-If an alien is not removed to a country designated under subparagraph (A)(i), the Attorney General shall remove the alien to a country of which the alien is a subject, national, or citizen unless the government of the country- (i) does not inform the Attorney General or the alien finally, within 30 days after the date the Attorney General first inquires or within another period of time the Attorney General decides is reasonable, whether the government will accept the alien into the country; or (ii) is not willing to accept the alien into the country. (E) Additional removal countries.-If an alien is not removed to a country under the previous subparagraphs of this paragraph, the Attorney General shall remove the alien to any of the following countries: (i) The country from which the alien was admitted to the United States. (ii) The country in which is located the foreign port from which the alien left for the United States or for a foreign territory contiguous to the United States. (iii) A country in which the alien resided before the alien entered the country from which the alien entered the United States. (iv) The country in which the alien was born.Comments on Withholding of Removal (WOR) Page 8
  • 9. (v) The country that had sovereignty over the aliens birthplace when the alien was born. (vi) The country in which the aliens birthplace is located when the alien is ordered removed. (vii) If impracticable, inadvisable, or impossible to remove the alien to each country described in a previous clause of this subparagraph, another country whose government will accept the alien into that country. (F) Removal country when United States is at war.-When the United States is at war and the Attorney General decides that it is impracticable, inadvisable, inconvenient, or impossible to remove an alien under this subsection because of the war, the Attorney General may remove the alien- (i) to the country that is host to a government in exile of the country of which the alien is a citizen or subject if the government of the host country will permit the aliens entry; or (ii) if the recognized government of the country of which the alien is a citizen or subject is not in exile, to a country, or a political or territorial subdivision of a country, that is very near the country of which the alien is a citizen or subject, or, with the consent of the government of the country of which the alien is a citizen or subject, to another country.(b)(3) [See above excerpt.]This section [INA § 241] contains a plethora of additional information in paragraphsdesignated (c) through (i) as well. The last snippet included herein is:(h) Statutory Construction.-Nothing in this section shall be construed to create any substantive orprocedural right or benefit that is legally enforceable by any party against the United States or itsagencies or officers or any other person.Withholding of Removal (WOR) is mostly statutory as far as proving eligibilitybut an element of discretion is involved in weighing evidence at the very least.Under CAT (when one is likely to be tortured or killed) WOR is mandatory. Inthe final analysis, an alien who is NOT STATUTORILY BARRED from reliefwill get it BUT, DHS has the right to remove the recipient of WOR status at anytime that such removal is determined to be practical, in the public interest OR thealien becomes statutorily ineligible.Comments on Withholding of Removal (WOR) Page 9
  • 10. EOIR has guidance for its IJ’s and a variety of Factsheets for the applicants referred to them bythe various DHS agencies.One such factsheet (excerpts below) is found at:http://www.justice.gov/eoir/press/09/AsylumWithholdingCATProtections.pdf“USCIS asylum officers refer aliens who are found to have a credible fear to EOIR for removalproceedings. During their removal proceedings, they may apply for asylum under 208 of theINA, withholding of removal relief under 241(b)(3) of the INA, or Convention Against Torture(CAT) protections.”“USCIS refers aliens who are found to have a reasonable fear to EOIR for “withholding only”proceedings. During their “withholding only” proceedings, they may apply for withholding ofremoval relief under 241(b)(3) of the INA or CAT protections.”“If the alien or DHS disagrees with the immigration judge’s decision, either party or both partiesmay appeal the decision to EOIR’s appellate component, the Board of Immigration Appeals(BIA). If the alien disagrees with the BIA’s ruling, the alien may file a petition for review (anappeal) with the federal circuit courts of appeal.”“Withholding of Removal Relief Under the INATo qualify for withholding of removal relief under the INA, INA 241(b)(3), aliens must establishthat it is more likely than not that their life or freedom would be threatened on account of race,religion, nationality, membership in a particular social group, or political opinion in the proposedcountry of removal.An order granting withholding of removal prohibits an alien’s removal to the country where analien’s life or freedom would be threatened –– but allows removal to a third country where analien’s life or freedom would not be threatened.Withholding of removal under the INA: • Does not provide relief for eligible family members in the United States, • Does not provide the ability to petition to bring eligible family members to the United States, • Does not lead to lawful permanent residence and, ultimately, citizenship, and • Does provide relief recipients (not their family members) the ability to apply (with USCIS) for work authorization.Claims for withholding of removal under the INA are adjudicated by EOIR immigration judgesduring regular removal proceedings. Immigration judge decisions may be appealed to the BIA. Ifthe alien disagrees with the BIA’s ruling, the alien may file a petition for review (an appeal) withthe federal circuit courts of appeal.Additional information on withholding of removal under the INA is available in the instructionsto the Form I-589, “Application for Asylum and for Withholding of Removal.”Comments on Withholding of Removal (WOR) Page 10
  • 11. Convention Against Torture ProtectionsCAT protections relate to the obligations of the United States under Article 3 of the UnitedNations Convention Against Torture. This is an international treaty provision designed to protectaliens from being returned to countries where they would more likely than not face torture.Torture is defined, in part, as severe pain or suffering (physical or mental) that is intentionallyinflicted by or at the instigation of or with the consent or acquiescence of a public official, orother person acting in an official capacity. Under this treaty provision, the United States agreesnot to “expel, return, or extradite” aliens to another country where they would be tortured.Regarding eligibility, CAT protections: • Require applicants to establish that it is more likely than not that they would be tortured if removed to a specific country, • Do not apply to all types of harm that qualify as persecution. Not all types of harm that qualify as persecution necessarily qualify as torture, • Do not require applicants to establish that the torture is based on one of the five protected grounds (race, religion, nationality, membership in a particular social group, or political opinion), as is required for asylum or withholding of removal under the INA, and • May be granted to criminals, terrorists, and persecutors, as they cannot be returned to a country where they would face torture.CAT protections: • Allow the detention of CAT recipients, where appropriate, • Allow the removal of CAT recipients to a third country where they would not be tortured, • Allow eligible CAT recipients, but not their family members, to apply (with USCIS) for work authorization, • Do not provide for CAT recipients to become lawful permanent residents, and • Do not provide for CAT recipients to bring family members to the United States.CAT Protections –– Withholding of Removal (Under CAT) and Deferral of RemovalCAT provides two types of protections, “withholding of removal (under CAT)” and “deferral ofremoval.” Both protections ensure that aliens are not returned to a country where they would facetorture.• Withholding of Removal (Under CAT)Withholding of removal (under CAT) prohibits returning aliens to a specific country where theywould face torture. It is a more secure form of protection than deferral of removal. It can beterminated only if DHS establishes that an alien is not likely to be tortured in that country.Comments on Withholding of Removal (WOR) Page 11
  • 12. • Deferral of RemovalDeferral of removal also prohibits returning aliens to a specific country where they would facetorture. However, deferral of removal is granted to aliens who likely would face torture but whoare ineligible for withholding of removal (under CAT), for example, certain criminals andpersecutors.Deferral of removal is a more temporary form of protection. It can be terminated more quicklyand easily if an alien no longer is likely to be tortured in the country of removal, or if the U.S.government receives assurances that the alien will not be tortured if returned.CAT claims are adjudicated by EOIR immigration judges during regular removal proceedings.Immigration judge decisions may be appealed to the BIA. If the alien disagrees with the BIA’sruling, the alien may file a petition for review (an appeal) with the federal courts of appeal.Information about EOIR removal proceedings is available on EOIR’s website.”In another, older factsheet at:http://www.justice.gov/eoir/press/05/ImmigrationCourtProcess2005.pdf ,EOIR begrudgingly stated:“If the alien disagrees with the BIA’s ruling, the alien may file an appeal in the federal courtsystem. If DHS disagrees with the BIA’s ruling, in rare instances, the case may be“certified” (referred) to the Attorney General for review.” [Emphasis added.]Comments on Withholding of Removal (WOR) Page 12