IRLI, on behalf of its client the Federation for American Immigration Reform (FAIR), submitted a friend-of-the-court brief at the request of the Board of Immigration Appeals (BIA) to address whether, pursuant to a grant of withholding of removal (WOR) to Respondents under INA §241(b)(3), the Immigration Judge (IJ) was obligated to enter an order of removal and to designate alternative countries, using the procedure in INA §241(b)(2), where the threat to Respondent’s life or freedom which formed the basis of the decision to grant WOR, is not present.
In its brief, IRLI clarified that the use of a WOR petition is a defensive petition and as such, a WOR can only be employed after an alien is ordered to be removed. IRLI also noted that WOR cannot be granted until an alien has been determined removable in a prior or concurrent proceeding. Once a WOR has been properly granted, it only prevents removal to one or more countries where the alien is at risk for persecution. It does not automatically guarantee that the alien will stay within the United States. The alien may be removed to another country, other than the United States, where he or she will not be a risk for persecution. These third party countries afford flexibility in the WOR process and ensure safe deportability.