Proposed Border Legislation Focuses on Little-Understood ‘Withholding of Removal’

Although the word “asylum” and the related descriptor “asylum-seeker” are familiar to those following events at the Southwest border, a new phrase has entered Congress’s debate over the best way to control the illegal entry of migrants into the United States: “withholding of removal”. It refers to two very different forms of humanitarian relief that every alien in this country can apply for, including those without status. Withholding of removal isn’t that complicated, but Congress seems to be ignoring the aspect of it that is a much more salient problem driving, in part, the ongoing border surge: that part relating to the UN Convention Against Torture, or “CAT”.

The Definition of ‘Refugee’

To lay the groundwork, I first have to go back to the definition of “refugee” in section 101(a)(42) of the Immigration and Nationality Act (INA). It states, in pertinent part:

The term “refugee” means . . . any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion . . . . [Emphasis added.]

Refugee status, under section 207 of the INA, is only available to foreign nationals outside the United States, but when it drafted that provision (in the Refugee Act of 1980), it also created a process by which aliens present here who satisfied that refugee definition in section 101(a)(42) of the INA could seek protection without departing, “asylum” under section 208 of the INA.

Asylum

To be clear, the burden of proof to establish eligibility for asylum is not high: all the applicant needs to show is either a prior instance of persecution or a “well-founded fear” that the applicant will be subject to persecution in the future—a standard that has been found to be less than a 50 percent chance that such persecution will occur.

That said, as the refugee definition reveals, neither refugee nor asylum status is available to every alien who has suffered or fears harm back home on any ground—such harm must be shown to be based on race, religion, nationality, membership in a particular social group, or political opinion.

War, conscription, poverty, gang violence, common crime, most forms of corruption—none of them will make an alien eligible for asylum. They may create the conditions under which persecution as defined exists, but they will not make an alien eligible for asylum per se.

Those five grounds were the bases for protection agreed upon in the UN’s Refugee Convention in 1951 for good reason—the convention itself was a response to the fascist terror that had torn through Europe up to and during World War II, and all but “membership in a particular social group” had been a basis for Nazi persecution during that period. That latter ground was added as a poorly thought-out “catch-all”.

In fact, as the UN itself explains:

the 1951 Convention was essentially limited to protecting European refugees in the aftermath of the Second World War: The document contains the words “events occurring before 1 January 1951” which are widely understood to mean “events occurring in Europe” prior to that date.

Regrettably, that war did not resolve all the world’s problems, and the conferees went back to the drawing board in 1966, which resulted in what’s known as the “1967 Protocol”, a supplement to the 1951 Refugee Convention.

The United States was not a signatory to the 1951 Refugee Convention (it had its own processes for war refugees), but it did accede to the protocol, subject to reservations, which it signed in November 1968. Section 208 of the INA, in part, codifies our country’s obligations under that agreement.

In 2004, when my colleague George Fishman and I, as staffers on the House Judiciary Committee, were drafting amendments to the asylum definition in section 208 of the INA to implement recommendations of the 9/11 Commission, we proposed clarifying the burden of proof that asylum applicants must carry to be granted asylum.

Those clarifying amendments, which largely codified earlier court decisions interpreting section 208 in statute, were included in the REAL ID Act of 2005. The most important of those amendments, at section 208(b)(1)(B) of the INA, explains:

The burden of proof is on the applicant to establish that the applicant is a refugee, within the meaning of section 101(a)(42)(A) of [the INA]. To establish that the applicant is a refugee within the meaning of such section, the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.

That “at least one central reason” requirement is critical because most alleged acts of persecution are rarely carried out for just one reason. For example, if an ethnic Chinese national is mugged in Indonesia (a not-unusual claim), is that nationality-based persecution or “common crime”? If MS-13 tries to force an Evangelical male in El Salvador to join, is that religious-based persecution or gang recruitment?

Most critically, however, those REAL ID amendments were a response to Ninth Circuit case law that opened the door for potential terrorists to seek asylum based on what they claimed was persecution on account of “political opinion” in their home countries.

“Statutory Withholding” Under Section 241(b)(3) of the INA

You may be wondering why, if the United States signed the 1967 Protocol in 1968, it took 12 more years for this country to pass the Refugee Act of 1980. At the time, Congress didn’t think it was necessary.

That’s because, when Congress wrote first wrote the INA in 1952, it included the following at section 243(h):

The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to physical persecution and for such period of time as he deems to be necessary for such reason. [Emphasis added.]

Aliens granted withholding of deportation under section 243(h) of the INA didn’t receive any permanent status, but that provision also didn’t limit protection to only those who suffered persecution on the basis of race, religion, nationality, membership in a particular social group, or political opinion, either. Those restrictions were added to section 243(h) of the INA by the Refugee Act of 1980.

When Congress amended the INA in 1996, that provision was moved to section 241 of the INA, which governs the detention and removal of aliens who have been ordered removed.

Current section 241(b)(3) of the INA states, in pertinent part:

the Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s 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.

The same burdens of proof that are imposed on asylum seekers by the REAL ID Act of 2005 were also applied to those seeking what is now referred to as “statutory withholding” under section 241(b)(3) of the INA.

The standard for statutory withholding is higher than for asylum. To be granted statutory protection, the applicant must show that it is “more likely than not” that the alien will be persecuted on one of those five grounds, compared to the “well-founded fear” standard for asylum.

And, as under section 243(h) of the INA, an alien granted statutory withholding has no permanent status in this country. In fact, to be granted that protection, the alien must first be ordered removed; the protection only prevents DHS from removing the alien to a specific country or countries. Consequently, it does not provide a pathway to citizenship nor the ability to immigrate family members to the United States, two key benefits of asylum.

So, why would any alien seek a form of protection with a higher standard of proof and fewer benefits? First, under section 208(a)(1)(B) of the INA, aliens must apply for asylum within 1 year of entry, subject to exceptions, whereas there are no time bars for seeking statutory withholding.

Second, aliens convicted of certain crimes (and aggravated felonies in particular) are categorically barred from being granted asylum, while only aggravated felony convictions for which an alien was sentenced to 5 years or more imprisonment are categorical bars to statutory withholding.

Withholding Under the Convention Against Torture (CAT)

Withholding of removal under section 241(b)(3)(B) of the INA is referred to as “statutory withholding” to distinguish it from a separate form of humanitarian protection: Withholding of removal under the UN’s Convention Against Torture (CAT), or “CAT withholding”.

The United States is a signatory to the CAT (as are China, Russia, Pakistan, Syria, and Cuba, among others), which it ratified in October 1994. Our ratification was not “self-executing”, that is, it required congressional legislation to make it effective.

That legislation was included in the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA), which made it U.S. policy “not to expel, extradite, or otherwise effect the involuntary removal of any person to a country where there are substantial grounds for believing that the person would be in danger of being subjected to torture”.

FARRA did not expressly explain how that policy was to be implemented, however leaving it up to the “appropriate” executive-branch agencies to enact regulations to enforce CAT protections. Consequently, unlike asylum and statutory withholding, CAT withholding is not actually in the INA, but instead was implemented by regulation at 8 C.F.R. §§ 208.16(c) and 208.18.

As with statutory withholding, an alien seeking CAT withholding must show that it is more likely than not that the applicant would be subject to “torture” as defined therein.

That said, the CAT withholding regulation does not limit protection to aliens who show that such harm would be inflicted on account of race, religion, nationality, membership in a particular social group, or political opinion. Such torture, however, must be “inflicted by or at the instigation of or with the consent or acquiescence of a public official acting in an official capacity or other person acting in an official capacity”.

As with statutory withholding, CAT withholding can only be granted after the alien is ordered removed, and it also provides few benefits other than preventing DHS from removing an alien granted that protection to a specified country or countries (though both come complete with employment authorization).

There is also a separate form of CAT known as “CAT deferral”, which is available to any alien who can satisfy the Torture Convention standard, regardless of how they came or what they’ve done—there are no bars, period. Had Osama Bin Laden been captured alive and brought back to the United States, he almost definitely would have been eligible for CAT deferral.

CAT Withholding and ‘Credible Fear’

Congress’ interest in withholding is a response to the massive surge of aliens who have crossed the Southwest border illegally since President Biden took office. As a federal judge found in March, while geopolitical factors may play some role in this surge, the main reason migrants are coming now is they know they’ll almost definitely be released under the administration’s border policies.

Which brings me to two related concepts: “expedited removal” and “credible fear”. In 1996, Congress amended section 235(b)(1) of the INA to create the former, the express purposes of which are to speed the removal of aliens who enter illegally or show up at the ports without proper admission documents, and to curb abuses of the asylum system described above by aliens who are simply coming to work.

Expedited removal seeks to achieve these goals by allowing CBP to deport illegal aliens encountered at the borders and the ports quickly, without first obtaining removal orders from immigration judges in removal proceedings.

Expedited removal, however, comes with a “catch”, which requires CBP officers and Border Patrol agents to refer aliens subject to expedited removal who express a fear of harm if returned or who request asylum to asylum officers (AOs) at USCIS, for what is known as a “credible fear” interview.

The “credible fear” standard is low, defined by statute as “a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 208” of the INA.

Note that the expedited removal provision doesn’t mention CAT at all, nor does it refer to statutory withholding. Nonetheless, when it published regulations implementing the credible fear provisions in December 2000, the outgoing Clinton administration also directed AOs to consider whether aliens subject to expedited removal who claimed a fear of harm also had a “credible fear of torture”.

That was likely not a problem prior to FY 2010, when AOs were considering fewer than 500 credible fear claims per month. By FY 2018, however, when they had to plow through nearly 100,000 claims per year, things started to slip.

None of those AO credible fear determinations are public (they are protected from any disclosure under a separate regulation), but when I was an immigration judge, most of the credible fear determinations I reviewed had more to do with torture than they did with persecution under section 208 of the INA.

Basically, if the migrant managed to convince the AO that that he or she would face physical harm if returned, the AO would pass the alien over to the immigration court to determine whether the harm satisfied the regulatory definition of torture, or perhaps rendered the alien a member of a particular social group.

That was a big reason why AOs found that 81 percent of the aliens subject to expedited removal whom they interviewed for credible fear between FY 2008 and FY 2019 received positive credible fear determinations, even though just 14 percent of them were ever granted asylum.

Members of Congress who are concerned about this loophole are attempting to address it by tightening the credible fear standard not only for asylum but also for statutory withholding. That’s great, I suppose, except (1) few illegal entrants who’d qualify for statutory withholding wouldn’t also satisfy the lower asylum standard, and (2) their proposals do nothing to address CAT—which as I’ve explained above is a much bigger problem in the credible fear context.

The CAT standards are strict, but few AOs ever have to deal with them except in the credible fear context. Although a proposed regulatory change would have given AOs jurisdiction to grant CAT applications by border migrants, the administration pulled that (plainly illegal) authority from the final version of its (still illegal) final plan, which allows AOs to adjudicate those aliens’ asylum applications.

And even though AOs have jurisdiction to adjudicate “affirmative” asylum applications by aliens in the United States who aren’t subject to either expedited removal or “regular” removal proceedings, that jurisdiction does not apply to CAT withholding claims. CAT just isn’t something that AOs—who unlike immigration judges, aren’t necessarily attorneys—have much experience in dealing with.

Unlike statutory withholding, withholding under the Convention Against Torture is a real issue in the border context, but it doesn’t appear to be on Congress’ radar. That’s a problem, because if Congress wants to curb border abuses of our generous humanitarian protection laws, it needs to start with CAT.