Bars to Eligibility for Withholding of Removal
An applicant is not eligible for withholding of removal if he:
- Is a persecutor;
- Has committed a serious nonpolitical crime outside the United States;
- There are reasonable grounds to believe the alien is a danger to the security of the United States, including an alien described in INA §237(a)(4)(B) (relating to terrorist activity); or
- Has been convicted of a particularly serious crime.
Particularly Serious Crimes
A conviction for a particularly serious crime will prohibit a foreign national from receiving withholding of removal under the INA or under CAT. INA§241(b)(3)(B)(ii), 8 USC §1231(b)(3)(B)(ii).
A client has a conviction for a particularly serious crime if the client is applying for withholding of removal and “has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years.” INA §241(b)(3)(B), 8 USC §1231(b)(3)(B).
Adjudicators may determine that a crime that does not meet the above criteria is nonetheless a particularly serious crime. In making their determination, adjudicators must consider the following factors:
- the nature of the conviction;
- the circumstances and underlying facts of the conviction;
- the type of sentence imposed; and
- whether the type and circumstances of the crime indicate that the alien will be a danger to the community.
See Matter of S-S, 22 I&N Dec. 458 (BIA 1999) (overruled in part by Matter of Y-L-, A-G-, R-S-R, 23 I&N Dec. 270 (A.G. 2002)), Matter of N-A-M-, 24 I&N Dec. 336, 342 (BIA 2007); Matter of Frentescu, 18 I&N Dec. 244, 247 (BIA 1982). Drug trafficking offenses are presumptively particularly serious. See Matter of Y-L-, 23 I&N Dec. 270 (Op. Att’y Gen. 2002). Particularly serious crimes usually involve violence or the risk of violence against a person.
Eligibility for Withholding of Removal Under Section 241(b)(3) of the Act
The burden of proof is on the applicant for withholding of removal under section 241(b)(3) of the Act to establish that his life or freedom would be threatened in the proposed country of removal on account of race, religion, nationality, membership in a particular social group, or political opinion. The testimony of the applicant, if credible, may be sufficient to sustain he burden of proof without corroboration. The evidence shall be evaluated as follows:
208.16(b)(1) Past threat to life or freedom
208.16(b)(2) Future threat to life or freedom
208.16(b)(3) Reasonableness of internal relocation.
The IJ may make a credibility determination based on the totality of the circumstances, and all relevant factors, including:
(1) Demeanor, candor or responsiveness of the applicant or witness
(2) Inherent plausibility of the applicant or witness’s account
(3) Consistency between applicant’s or witness’s written or oral statements, whenever made and whether or not under oath, but considering the circumstances under which they were made
(4) Internal consistency of each statement
(5) Consistency of such statements with evidence of record and U.S. State Department Reports
(6) Any inaccuracies or falsehoods contained in the statements, whether or not material to the asylum claim. INA § 208(b)(1)(B)(iii)19 Where an immigration judge failed to make an explicit credibility finding, the respondent and any witnesses enjoy a rebuttable presumption of credibility. Id.
Burden of Proof
An applicant must show a clear probability of persecution by the government or a group the government cannot control on account of one of the protected grounds. INS v. Stevic, 476 U.S. 407 (1984). This is a more difficult burden (P>50%) to meet than that for asylum. As in asylum law, however, if the applicant can show that he suffered past persecution, then that individual will receive the benefit of a presumption of a well-founded fear of future persecution. Further, withholding of removal is mandatory if the individual meets the above clear probability test and establishes he is not barred from eligibility.