BIA Holds That Where DHS States That An Applicant May Be Removed To A Country Per INA §241(b)(2), The Applicant May Seek Withholding Of Removal From That Country In Withholding-Only Proceedings, Even If That Country Is Different From The Country Of Removal That Was Originally Designated In The Reinstated Removal Order On Which The Withholding-Only Proceedings Are Based.
On April 9, 2021, the Board of Immigration Appeals (BIA or Board) sustained Respondent’s appeal of a decision by the Immigration Judge (IJ) concluding that the Immigration Court lacked the authority to consider his applications for both withholding of removal to Honduras under INA §241(b)(3)(A) and CAT (Convention Against Torture) protection. The BIA requested supplemental briefing and the parties submitted a joint motion to remand the record for further consideration of Respondent’s eligibility for withholding of removal.
The legacy-INS had served Respondent with a notice to appear (NTA), alleging he was a native and citizen of Mexico and charging him with being removable for, among other things, his entry without inspection (EWI). Before an IJ, Respondent admitted that he was a native and citizen of Mexico and was ordered removed to that country. In 2002, Respondent illegally reentered the U.S.; INS reinstated the 1998 removal order per INA §241(a)(5) and once more removed him to Mexico. Two years later, Respondent again entered EWI and in 2012 was detained by DHS. He subsequently claimed to be a native and citizen of Honduras, expressing a fear of return. In 2013, DHS referred him to the IJ for a withholding-only hearing after concluding he had a reasonable fear of torture in Honduras.
One month later, Respondent filed an application for withholding of removal, asserting for the 1st time before an IJ that he was a native and citizen of Honduras who feared returning to that country. At a later hearing, DHS indicated that it intended to deport Respondent to Honduras and both parties submitted evidence supporting his claim to birth in Honduras. In 2018, the IJ concluded that he lacked the authority to consider the application for withholding as well as the CAT claim based on return to Honduras, holding that he only had the authority to consider a withholding application regarding Mexico, as 1) Respondent had been ordered removed to Mexico, 2) his withholding-only proceedings were premised on a reinstated removal order designating Mexico as the country of deportation, and 3) he had bever been ordered removed to Honduras. Because the withholding request did not demonstrate a likelihood of persecution or torture in Mexico, the IJ denied it. Respondent’s appeal challenged the IJ’s order on the ground that, even though he was previously ordered deported to Mexico, DHS has stated that he may be removed to Honduras because the record reflects, and both parties agree, that he is a native and citizen of that country; as DHS sought to remove him to Honduras, Respondent argued on appeal that he may seek withholding from that country under §241(b)(3)(A), which prohibits DHS from removing one to a country where his or her life or freedom would be threatened. DHS did not dispute Respondent’s eligibility for withholding of removal from Honduras and thus moved that the record be remanded for that purpose.
In beginning its analysis, the BIA noted that an applicant subject to a reinstated order of removal per §241(a)(5) who is found to have a reasonable fear of persecution or torture in the country of removal is entitled to a hearing before an IJ for consideration of a request for withholding only. The question here, concluded the decision, is “whether an applicant in withholding-only proceedings may seek to have his removal withheld from a country to which the DHS indicates he may be removed even if that country is different from the original ‘country of removal’ designated on the reinstated order on which the withholding-only proceedings are based.”
After running through the statutory sections setting forth which country one can be removed to, and under what conditions, the Board found that DHS retains discretion to determine the proper country of removal under §241(b)(2) and that neither the IJ nor the BIA “has jurisdiction to review the DHS’s discretionary determination in this regard.” However, once DHS determines the proper country of deportation, it may not remove an applicant to that country if his or her life or freedom would be threatened there on account of a ground protected under INA§241(b)(3)(A). Nor, added the opinion, may it remove him or her to the country of removal if “it is more likely than not that he or she would be tortured” there.
The Board next stated that it was unclear whether Respondent or the former INA had designated Mexico as the country of deportation in 1998; however, during the withholding-only proceedings DHS had explained that it intended to remove Respondent to Honduras and the documentation filed by both parties showed that he was in fact, a native and citizen of that country. Thus, DHS now indicated that Respondent could be deported to Honduras per §241(b)(2)(D), as he is a “citizen” there. As a result, concluded the decision, he is eligible to seek withholding from Honduras.
The BIA also found that INA §241(b)(3)(A) prohibits Respondent’s removal to a country where his life or freedom would be threatened. As a result, the IJ “was not bound by the designation of Mexico as the country of removal in 1998, and, once the DHS stated that it intended to remove the applicant to Honduras, the Immigration Judge should have given ‘full consideration’ to the applicant’s request for withholding of removal to Honduras” per §241(b)(3)(A) and the CAT. Additionally, noted the opinion, the relevant regulation (8 C.F.R. §1208.31) does not condition a reasonable fear interview or a withholding-only hearing on one’s fear of returning to the “country designated” by the reinstated removal order; instead, such proceedings are conditioned on a fear of harm in the “country of removal” – a term taken to mean the country to which DHS has stated it will remove Respondent under §241(b)(2). A contrary conclusion “would be inconsistent with the broader language used §1208.31 and impinge on the DHS’s exclusive authority to determine the appropriate ‘country of removal’ pursuant [to] section 241(b)(2) of the Act.”
The Board therefore held that where, as here, DHS states that an applicant may be removed to a country under §241(b)(2), he or she may seek withholding of removal from that country in witholding-only proceedings, even if that country is different from the country that was originally designated in the reinstated removal order on which such proceedings are based. Because the IJ’s contrary conclusion was error, Respondent’s appeal was sustained, the parties’ joint motion for remand was granted and the record was remanded to the IJ. Matter of A-S-M-, 28 I&N Dec. 282 (BIA 2021).