Withholding of removal

Under U.S. immigration law, a protection known as withholding of removal prevents the government from returning someone to a country where their life or freedom would be at risk. Formerly called “withholding of deportation,” it applies when persecution is based on one of the following protected grounds:

• Race;
• Religion;
• Nationality;
• Political opinion; or
• Membership in a particular social group.

Unlike asylum in the United States, this protection is not discretionary. If you meet the legal requirements, the immigration judge must grant it by law under section 241(b)(3) of the Immigration and Nationality Act (INA).

That’s why it is considered one of the strongest defenses against a final order of removal. It is often confused with cancellation of removal or with a regular stay of removal, but it has different requirements and a higher burden of proof.

A key point is that the applicant must show there is at least a 51% probability (more likely than not) of being persecuted if returned to their country.

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In the following lines you will learn what withholding of removal is, how it works, the legal requirements, who does not qualify, and what happens after it is granted.

What is withholding of removal and how it works

Withholding of removal in the United States is a protection designed to ensure that no noncitizen is sent back to a country where they may be persecuted.

• Its legal basis is found in INA § 241(b)(3) and in regulations 8 CFR § 208.16–208.18.
• To request it, you file Form I-589 (Application for Asylum and for Withholding of Removal) with USCIS or with the immigration judge, depending on your case.
• This form is also used to request asylum or protection under the Convention Against Torture (CAT).
• There is no one-year filing deadline for withholding of removal. However, you must prove that your fear of persecution is current and credible.

The judge will review your risk factors and all the evidence you submit (personal statement, human rights reports, medical evidence, country conditions, etc.).

Practical example: A Honduran woman fled a gang because she is an active member of a religious group. She may not qualify for asylum if more than one year has passed since she arrived in the U.S. However, she could still obtain withholding of removal if she proves she is still at risk of religious persecution.

Key considerations on withholding of removal in the U.S.

Some important points to keep in mind about this form of relief:

• The U.S. government cannot deport you to your country of origin, although it could send you to a third safe country.
• It does not give you a Green Card, but it does allow you to apply for an Employment Authorization Document (EAD).
• You may remain in the U.S. under protection as long as you continue to qualify.

Legal requirements for withholding of removal

Withholding of removal is a mandatory protection under INA § 241(b)(3) and regulation 8 CFR § 208.16(b). The judge must grant it if the applicant proves all required elements.

To qualify, you must show:

• More than a 50% probability (“more likely than not”) that you will suffer persecution if returned to your country.
• That the persecution would be on account of your race, religion, nationality, political opinion or membership in a particular social group.
• That the threat comes from the government or from actors the government is unable or unwilling to control.
• That you have not been convicted of a particularly serious crime and have not taken part in persecuting others.

Note on the process: the request is filed through Form I-589. Below we explain the step-by-step process so we don’t repeat the same information here.

Practical example: A Salvadoran applicant proves that if he returns, a gang will target him because he collaborated with a church. If he submits credible evidence (letters, reports, photos), he could obtain withholding of removal in the U.S. even if his asylum application was barred by the one-year deadline.

Who does not qualify for withholding of removal

Not everyone can receive withholding of removal. U.S. immigration law excludes people who:

• Have been convicted of a particularly serious crime.
  • If a person has 5 years or more of imprisonment, immigration law presumes it is a particularly serious crime.
  • Even with shorter sentences, the judge may find the offense “particularly serious” based on the facts.
• Took part in the persecution of others (persecutor bar).
• Are considered a danger to U.S. national security or are linked to terrorist activities.

When there is a criminal record, certain immigration waivers may help in other processes. However, they do not erase ineligibility for withholding of removal.

Comparison – Asylum vs. Withholding of Removal vs. CAT

Aspect	Asylum	Withholding of Removal	CAT Protection
Legal basis	INA § 208	INA § 241(b)(3) / 8 CFR 208.16	Convention Against Torture
Discretion	Discretionary	Mandatory if standard is met	Mandatory if torture is proven
Filing deadline	Within 1 year of entry	No time limit	No time limit
Path to Green Card	Yes	No	No
Derivative family	Yes	No	No
Travel permission	Yes	Cannot leave the U.S.	Cannot leave the U.S.
Protection from removal	Yes	Yes, except to a safe third country	Yes, only for risk of torture
Burden of proof	Well-founded fear	> 50% probability	High probability of torture by or with consent of officials
Example	Persecution for political opinion	Religious or social persecution	Direct torture by an official

Documents required to apply for withholding of removal

To support your asylum and withholding of removal application, gather the following:

• Personal sworn statement explaining your full story and the reasons for your fear.
• Evidence of past persecution: letters, police reports, medical reports or photographs.
• Evidence of future risk: country reports from organizations such as Human Rights Watch or Amnesty International.
• Identity documents: passport, consular ID or national ID.
• Evidence of entry to the U.S. (entry stamp, visa, I-94 or airline tickets).
• Employment or school records, if available.
• Support letters from family, church or community leaders.
• Evidence of rehabilitation, if you had a criminal record.

You must also keep a stamped copy of the entire application. For every hearing bring the originals and two copies — one for the judge and one for DHS.

Checklist – Form I-589 and supporting documents

Step / Requirement	Action needed
Download Form I-589	From USCIS
Complete in English and sign	Typed or legibly handwritten
Attach personal statement	Explain fear of persecution
Gather documentary evidence	Photos, reports, witness letters
File with USCIS or give to the judge	Depending on your immigration situation
Attend biometrics appointment	Per USCIS notice
Bring copies to every hearing	Original + 2 copies (one for DHS)
Request EAD if eligible	After case is accepted

How to apply for withholding of removal step by step

To request withholding of removal, you must use Form I-589 (Application for Asylum and for Withholding of Removal). The same form can also be used to request asylum or CAT protection.

The main steps are:

1. Download and complete the form. It must be completed in English, typed or in black/blue ink.
2. Attach your personal declaration. Describe in detail what happened, who harmed you, what the government did or did not do, and why you fear returning.
3. Include documentary evidence. Attach the evidence that supports your story.
4. Submit the application. If you are detained, file it with the Immigration Court; if not, file it with the USCIS asylum office with jurisdiction.
5. Biometrics. USCIS will send you a notice to take your fingerprints and photo.
6. Hearing before the judge. You must prove that your case meets the standard under 8 CFR § 208.16.
7. Work authorization (EAD). If your case is accepted for processing, you can apply for employment authorization.

Practical example: A Guatemalan man submits Form I-589 with letters from his parish, Amnesty International reports and police reports. The judge finds there is more than a 50% probability of religious persecution, so he grants withholding of removal in the U.S.

Relationship between withholding of removal, asylum and CAT protection

Withholding of removal has similarities with asylum and with protection under the Convention Against Torture (CAT), but each form of relief has different effects.

• In asylum, the judge has discretion.
• Withholding of removal is mandatory if the “more likely than not” standard is met.
• CAT protection is only granted when the noncitizen can prove they would be tortured directly by the government or with its consent.
• CAT does not require the harm to be for race, religion or social group, but it also does not provide a path to permanent residence or family benefits.

What happens when withholding of removal is granted

When withholding of removal is granted, the United States cannot send the noncitizen back to their home country because their life or freedom would be at risk there.

This benefit does not create a permanent immigration status, but it allows the person to remain lawfully in the U.S. under protection.

Main effects and limitations

• You cannot obtain a Green Card or citizenship solely through this relief.
• You cannot travel outside the United States; leaving may terminate the protection.
• The order may be revoked if country conditions improve.
• You cannot bring your family to the U.S. through this benefit.
• You may request an EAD to work legally.
• In some cases, there is access to limited public benefits, such as Medicaid or food stamps for seven years. See: What are the consequences of having food stamps.

Table – Rights and restrictions after obtaining withholding of removal

Aspect	Asylum	Withholding of Removal	CAT Protection
Path to residence	Yes, after 1 year	No	No
Family petitions	Allowed	Not allowed	Not allowed
Work authorization (EAD)	Yes	Yes	Yes
International travel	With refugee travel document	Not allowed	Not allowed
Public assistance	Yes	Limited (7 years)	Limited (7 years)
Possible revocation	Rare	Yes, if country improves	Yes, if risk disappears
Transfer to safe third country	Not applicable	Possible	Possible
Nature of relief	Permanent / discretionary	Temporary / mandatory	Temporary / mandatory

Practical example: A Nicaraguan national obtains withholding of removal in the U.S. after proving that he would be persecuted for his political views. Even though he cannot get a Green Card or travel abroad, he keeps his job with a valid EAD and limited access to benefits. His brother, however, accepts voluntary departure from the U.S. and loses all protection.

Appeals and motions to reopen a withholding of removal case

If withholding of removal is denied, the noncitizen may still challenge the decision in two main ways:

• An appeal before the Board of Immigration Appeals (BIA), or
• A motion to reopen the case.

Appeal to the BIA

• It is filed on Form EOIR-26.
• The appeal must be received by the BIA within 30 calendar days of the judge’s decision.
• It must contain clear legal arguments showing that the judge made an error of fact or law.
• New evidence is generally not accepted at this stage.
• The BIA may affirm, modify or remand the case for a new hearing.

Motion to reopen the case

• It can be filed with the same immigration judge or with the BIA.
• It is used when there are new facts, changes in country conditions, or evidence that was previously unavailable.
• It must be filed within 90 days of the final order of removal.
• If the reason is changed country conditions, there is no deadline.
• It must include material evidence and sworn statements supporting the new facts.
• As a general rule, only one motion to reopen is allowed, with few exceptions.

For more information, read our article: Immigration appeal process.

Practical example: A Salvadoran woman loses her withholding of removal case in 2023. In 2026, her political party is targeted again. Her lawyer files a motion to reopen and the judge reconsiders protection.

Alternatives if withholding of removal is denied

If the court denies withholding of removal, the noncitizen can still evaluate other forms of immigration relief.

NACARA (Nicaraguan Adjustment and Central American Relief Act)

NACARA relief is available only to certain immigrants from Nicaragua, El Salvador, Guatemala and some former Soviet bloc countries. It generally requires:

• At least 7 years of continuous physical presence in the U.S.
• Good moral character.
• Extreme hardship to the applicant or to a qualifying resident/citizen relative.

Cuban Adjustment Act

The Cuban Adjustment Act applies only to Cuban citizens or nationals who:

• Were inspected and admitted or were paroled into the U.S.; and
• Have been physically present in the U.S. for at least one year. If they meet these requirements, they may request permanent residence through Form I-485.

TPS (Temporary Protected Status)

TPS grants temporary protection from deportation and work authorization to nationals of designated countries. Eligibility depends on nationality and on the continuous presence date set by USCIS.

Learn more about what TPS is in the United States on our blog.

Protection under the Convention Against Torture (CAT)

Available to those who can show that it is more likely than not they would be tortured by the government or with its acquiescence if returned.

Unlike asylum or withholding, even people with certain serious crimes may qualify, because CAT is an absolute protection against torture.

Voluntary departure

If there is no other viable option, the judge may allow voluntary departure. The noncitizen leaves the U.S. on their own, avoiding a formal removal order.

Table – Alternatives if withholding of removal is denied

Alternative	Type of benefit	Path to residence	Authority
NACARA	Suspension / cancellation of removal	Yes, if eligible	DOJ – NACARA 121
Cuban Adjustment Act	Permanent residence after 1 year	Yes	USCIS – INA
TPS	Temporary protection and EAD	No direct path	USCIS – TPS
CAT protection	Protection from torture	No	DOJ / UN Convention
Voluntary departure	Avoids removal order	No	EOIR

Common denials in withholding of removal cases

Withholding of removal is one of the hardest protections to win in immigration court. In many jurisdictions the approval rates are low because the standard of pr