Restriction on Removal

Removal Immigration NJ Defense Lawyer

A form of relief related to asylum is the relief identified by INA 241(b)(3)(A) as “restriction on removal.” Unlike asylum, which is granted only at the CIS discretion, restriction on removal must be granted to anyone who qualifies for it. The INA provides that a non-citizen may not be removed to a country if their “life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” INA 241(b)(3)(A)  This relief was previously known as “withholding of deportation” and immigration officials and lawyers often continue to use the phrase “withholding of removal” to describe this relief.  Although the criteria for restriction on removal are similar to the grounds for asylum, there are a few significant differences between the two forms of relief. Most importantly, restriction on removal is non-discretionary. Another difference is that restriction on removal only prevents removal to the country where the non-citizen would be in danger and does not prevent removal to a third country.  In practice however, non-citizens who are granted restriction on removal are almost never removed from the U.S.  The Supreme Court held in INS v. Stevic, 467 U.S. 407 (1984) that a non-citizen seeking to avoid removal pursuant to this section of the INA must establish a clear probability of persecution. This is a higher standard of proof than the “well-founded” fear required to claim asylum. Asylum leads within one year to permit residence; restriction on removal however, only grants the non-citizen temporary residence in the United States and only for as long as the non-citizen’s life or freedom is threatened.  An application for asylum is automatically construed as a concurrent application for restriction on removal; if the request for asylum is denied, the immigration judge must consider whether the applicant is instead entitled to restriction on removal.

 Withholding of Removal Attorney

Non-citizens who are ineligible for the relief of restriction on removal include, (1) those who assisted in Nazi persecution or engaged in genocide; (2) assisted in the persecution of an individual because of the person’s race, religion, nationality, membership in a particular social group or political opinion; (3) are a danger to the community of the U.S., having been convicted by a final judgment of a particularly serious crime; (4) committed a serious non-political crime before entering the U.S.; or (5) otherwise represent a threat to the national security. INA 241(b)(3)(B)

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