The coronavirus (COVID-19) pandemic has brought to light the dire living conditions in many U.S. immigrant detention facilities. Many immigrants are rightfully fearful that remaining in Immigration and Customs Enforcement (ICE) custody could be harmful to their health during the COVID-19 pandemic. As a result, now is the time to consider whether it is possible to seek a bond hearing, Withholding of Removal, or a Stay of Removal to seek release from immigration custody.
How is Withholding of Removal Different from Asylum?
Asylum is a common form of relief for detained immigrants in deportation proceedings if they have suffered persecution or fear that they will suffer persecution due to race, religion, nationality, membership in a particular social group, or political opinion, but many detained immigrants are not eligible for asylum for a variety of reasons. For example, an immigrant who has been previously ordered deported from the United States is not eligible for asylum. However, they may be eligible for withholding of removal, as long as they have not been convicted of a “particularly serious crime” (and therefore constitute a danger to the U.S. community), which is a bar to withholding of removal eligibility. Some examples of “particularly serious crimes’ are aggravated felonies for which the immigrant received a prison sentence of at least five years, or convictions for drug trafficking.
Withholding of removal is similar to asylum but has some key differences. A withholding of removal claim seeks to stop the deportation of a person to a particular country where the applicant’s life or freedom would be threatened, and contrary to a grant of asylum, withholding of removal does not prevent removal to another country. While an asylee (a foreign national granted asylum) becomes eligible for Lawful Permanent Resident (LPR) status after one year, a grant of withholding does not lead to LPR status. Unlike asylum, which must be filed within 1 year of the immigrant’s arrival in the U.S., withholding of removal may be filed at any time. Unlike asylum, withholding of removal does not grant derivative benefits to the applicant’s spouse or children. However, it is possible to apply for employment authorization after being granted withholding of removal.
A finding of past persecution gives rise to a presumption of future persecution sufficient to establish eligibility for withholding of removal. If the applicant has not established past persecution, they must demonstrate that it is more likely than not that they would be persecuted if returned to their country and that it would be unreasonable to relocate. If past persecution is proven, withholding of removal may be denied if the Government finds relocation to another country is a viable option.
If a Detained Immigrant is Granted Withholding of Removal, When Will They be Released?
A grant of withholding of removal will not necessarily result in the immediate release of a detained immigrant. However, where the Government is not actively pursuing removal, it has authority to release a person with a final order of deportation who has been granted withholding of removal before the 90-day removal period has expired. In other words, the Government has the authority to hold a foreign national in custody for 90 days after they have been granted withholding of removal, even in cases where the Government has waived appeal. The Government also has authority to release a detained immigrant from custody before the 90-day period expires, but in practice it often chooses not to do so.
What is a Stay of Removal and How is it Different from Withholding of Removal?
Another form of relief from removal for detained foreign nationals is an Application for a Stay of Deportation or Removal (Stay of Removal). A Stay of Removal temporarily postpones the Government from carrying out an order of removal, meaning it delays the actual deportation until a later date. A Stay of Removal may be granted multiple times, often delaying deportation by many years, but each grant does not guarantee whether future grants will be approved.
An application for Stay of Removal must usually be submitted at a local U.S. ICE field office, but during the COVID-19 pandemic, ICE has agreed to accept applications by mail. ICE Enforcement and Removal Operations (ERO) has also announced that it will focus enforcement of prior deportation orders on immigrants who pose public safety risks and individuals subject to mandatory detention based on criminal grounds. For immigrants who do not fall into those categories, ERO will exercise discretion to delay enforcement actions until after the COVID-19 pandemic, or utilize alternatives to detention (ATD), as appropriate. As such, if you or your loved one have a prior order of removal (deportation), the time may now be ripe to apply for a Stay of Removal, especially if there are relevant humanitarian concerns. Humanitarian concerns that may result in a Stay of Removal being granted include supporting U.S. citizen or LPR family members, or if they or a close family member suffer from a serious medical condition.
Requesting a Bond Hearing to be Released from Immigration Detention
A bond hearing is another option to determine if a detained immigrant can be released from ICE custody. An immigrant in detention generally has the right to a bond hearing, unless:
• They are removable from the U.S. based on security reasons;
• They are subject to mandatory detention because of the commission of certain crimes; OR
• They are an “arriving alien,” which may include a returning LPR.
If the immigration judge grants bond in your case, then ICE will release you from custody once payment has been made.
Please contact one of the experienced immigration attorneys at Minsky, McCormick & Hallagan, P.C. if you or a loved one are currently detained in immigration custody.