WITHHOLDING OF REMOVAL
of I-S- & C-S-, 24 I&N Dec. 432 (BIA 2008)
The decision in this case resulted from an Immigration
Judge (IJ) order denying a motion by the Department of Homeland Security
(DHS) to amend a prior order to include an order of removal prior to a
grant of withholding of removal. The initial IJ order did not contain
an order of removal or state to what country the respondent’s removal
Here, the IJ previously found the respondent’s
application for Asylum to be untimely and pretermitted the application,
but alternatively granted Withholding of Removal to the respondents who
were from Indonesia. The IJ’s order did not contain an order of
removal or a country of removal.
Held, when an IJ issues a decision granting an alien’s
application for withholding of removal under section 241(b)(3) of the
Immigration and Nationality Act, 8 U.S.C. section 1231(b)(3) (2000), without
a grant of asylum, the decision must include an explicit order of removal.
Initially, DHS appealed the grant of withholding, but
later withdrew their appeal prior to its disposition by the Board of Immigration
Appeals (BIA) and accordingly the grant of withholding of removal became
final. Later, DHS moved for the order to be amended, and the IJ denied
the motion. An appeal followed and the matter was remanded to the IJ to
include an order of removal and withholding to Indonesia. Because the
IJ’s initial order did not contain an order of removal, DHS was
unable to remove the respondent’s to any country in the absence
of such order.
The BIA held that requiring an order of removal prior
to a grant of withholding was consistent with the current regulatory scheme
and that the regulations contemplate that an order of removal leads to
the final conclusion of removal proceedings. The BIA reasoned that prior
to withholding removal, an order of removal must first be entered. Citing
Maquire v. Comm’r, 313 U.S. 1, 9 (1941), the BIA noted that the
title of the relief withholding of removal clears up any ambiguity, and
that the plain meaning of the word withholding required that an order
be entered prior to a grant of that form of relief.
The BIA further reiterated that a grant of withholding
of removal is not discretionary and does not afford the respondents a
permanent right to remain in the United States. Further, they noted that
DHS is not precluded from removing the respondents to a country other
than the one to which removal has been withheld.
By giving words their plain meaning, the BIA left no
doubt that an order of removal must be entered prior to a grant of withholding.
For grants of asylum and withholding of removal, this case only becomes
an issue if asylum were revoked by the IJ after motion for some reason.
The author suggests that if an issue of an untimely asylum
application presents itself in your proceedings, that a note be made on
the IJ worksheet. When pretermitting an application for asylum but alternatively
granting withholding of removal, make certain to clearly enter an order
of removal but withholding to any particular country to avoid a remand
in the future.