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Matter 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 was withheld.

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.

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