In the complex landscape of U.S. immigration law, many noncitizens seek protection from deportation through various forms of relief. One such form is Withholding of Removal, a humanitarian protection granted to individuals who demonstrate a clear probability of persecution in their home country. This protection is often confused with asylum or lawful immigration status. However, the legal classification of Withholding of Removal raises an important and nuanced question: Is Withholding of Removal considered “lawful status” in the United States?
This article delves into the statutory basis, regulatory interpretations, and real-world implications of Withholding of Removal to determine whether this protection confers lawful status. It will analyze relevant laws, case precedents, immigration procedures, and how this designation affects an individual’s rights and long-term prospects in the United States.
Understanding Withholding of Removal
Definition and Legal Basis
Withholding of Removal is a form of protection granted under Section 241(b)(3) of the Immigration and Nationality Act (INA), which states that a noncitizen cannot be removed to a country where their life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion.
Unlike asylum, which is discretionary and can lead to lawful permanent residence, Withholding of Removal is a mandatory relief if the applicant meets the burden of proof. The standard of proof is higher than that for asylum: the applicant must show a “clear probability” of persecution, compared to the “well-founded fear” required for asylum.
Eligibility Requirements
To qualify for Withholding of Removal, an applicant must:
- Be physically present in the United States
- Apply through the immigration court process (not USCIS)
- Demonstrate a clear probability of persecution in the home country
- Not be barred from protection due to serious criminal convictions or terrorism-related activity
Difference Between Asylum and Withholding of Removal
Though both forms protect individuals from persecution, the differences are significant:
- Asylum can lead to permanent residency; Withholding of Removal does not
- Asylees can sponsor family members; recipients of Withholding cannot
- Withholding has a higher burden of proof
- Withholding is not a discretionary benefit—if eligibility is met, it must be granted
Does Withholding of Removal Grant Lawful Status?
Statutory Interpretation
The Immigration and Nationality Act does not explicitly state that Withholding of Removal provides lawful status. Instead, it prevents the individual’s removal to a specific country but does not confer any broader legal status or pathway to permanent residency.
Regulatory and Administrative Viewpoints
According to long-standing interpretations by the Department of Homeland Security (DHS) and the Executive Office for Immigration Review (EOIR), recipients of Withholding of Removal are not considered to be in “lawful status.” While they are allowed to remain in the U.S. and may receive work authorization, they remain under a final order of removal.
Final Order of Removal Still in Effect
When a person is granted Withholding of Removal, the immigration judge still issues a final order of removal. The order is “withheld” rather than executed. This distinction is crucial because having a final removal order means the individual is technically removable, but the United States has deferred that removal indefinitely due to international obligations.
Legal Precedents
Several legal cases have supported the interpretation that Withholding of Removal does not confer lawful status:
- Lujan-Armendariz v. INS – A Ninth Circuit case where the court emphasized the non-status nature of withholding protections
- Matter of I-S- & C-S- – A BIA decision confirming that withholding does not change an individual’s underlying immigration status
- U.S. v. Orellana – Affirmed that a person with Withholding of Removal remains subject to a removal order
Impact on Adjustment of Status
One of the practical consequences of not having lawful status is the inability to adjust to permanent resident status through most standard routes. For example, even if a person marries a U.S. citizen, their final order of removal and lack of lawful admission typically block adjustment without special waivers or motions to reopen.
Consequences of Not Having Lawful Status
Employment and Documentation
Although recipients of Withholding of Removal are granted employment authorization (EADs), this does not translate into legal status. Their documentation will often reflect their EAD category as “c10,” which signals an individual with a removal order and withholding protection. This category does not provide proof of status for most immigration or social services purposes.
Travel Restrictions
Individuals with Withholding of Removal cannot travel outside the United States. If they do, they will be considered as having self-deported and may not be able to return. Moreover, they cannot obtain advance parole or reentry permits, privileges that are often available to individuals with lawful status.
Lack of Pathway to Citizenship
Because Withholding of Removal is not a lawful status, it does not provide a path to lawful permanent residency (green card) or U.S. citizenship. The only way for a recipient to eventually obtain lawful status is through a successful reopening of their removal case or through new legal relief or legislation.
Barriers to Public Benefits
Withholding recipients generally do not qualify for most federal public benefits. Their lack of lawful status bars them from accessing benefits such as Medicaid, Supplemental Security Income (SSI), or federal student aid. States may offer limited programs, but these vary widely.
Exceptions and Grey Areas
Temporary Protected Status (TPS) and Deferred Action
Some recipients of Withholding may later become eligible for Temporary Protected Status (TPS) or Deferred Action for Childhood Arrivals (DACA), which can shift their designation to a more favorable temporary status. However, these programs have their own requirements and are not universally available.
Motion to Reopen and New Relief
If a recipient later becomes eligible for another form of immigration relief—such as a family-based petition, U visa, or adjustment based on changed circumstances—they may be able to file a motion to reopen their case. If granted, this could potentially lead to lawful status.
Pending Legislation
There have been various legislative proposals aimed at providing pathways to lawful status for individuals with long-term withholding or similar forms of humanitarian relief. As of now, none have passed, but future legal changes could alter the status landscape.
Practical Advice for Withholding Recipients
Maintain Valid Work Authorization
Since Withholding recipients cannot gain lawful status easily, maintaining a valid Employment Authorization Document is critical. Renewals must be submitted in a timely manner, often within 180 days before expiration.
Avoid Criminal Issues
Any new criminal issues could jeopardize existing protections and make it more likely that a person will be removed if country conditions change. Maintaining a clean record is essential.
Stay Informed About Policy Changes
Immigration law is fluid, and changes in administration can affect how Withholding of Removal is interpreted or whether new relief options become available. Regular consultations with an immigration attorney are highly recommended.
Conclusion
In conclusion, Withholding of Removal serves as a critical protection for individuals who would face life-threatening persecution if returned to their home countries. However, it does not confer lawful immigration status under current U.S. law. Recipients are permitted to remain in the United States, but they do so under a cloud of legal uncertainty and with limited rights.
They remain subject to a final order of removal, cannot adjust status through normal channels, and are barred from most benefits and travel options. While this form of relief is life-saving, it is legally precarious and does not offer the stability or opportunities associated with lawful status. As such, individuals granted Withholding of Removal must remain vigilant, compliant with all immigration rules, and proactive in exploring any new legal avenues that may arise.
For those affected, consulting a qualified immigration attorney and staying informed about legislative developments is essential. The hope is that future reforms may one day provide a more permanent and secure solution for this vulnerable population.
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