Cite as 24 I&N Dec. 432 (BIA 2008) Interim Decision #3595
Matter of I-S- & C-S-, RespondentS
Decided January 10, 2008
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
When an Immigration Judge issues a decision granting an alien’s application for
withholding of removal under section 241(b)(3) of the Immigration and Nationality Act,
8 U.S.C. § 1231(b)(3) (2000), without a grant of asylum, the decision must include an
explicit order of removal.
FOR RESPONDENTS: Pro se
AMICI CURIAE:1
Michael M. Hethmon, Esquire, and Sharma Hammond, Esquire,
Washington, D.C.; Jayne E. Fleming, Esquire, Oakland, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Sylvie C. Khayat, Assistant
Chief Counsel
BEFORE: Board Panel: OSUNA, Acting Chairman; HOLMES and GRANT, Board
Members.
GRANT, Board Member:
In a decision dated October 18, 2004, an Immigration Judge found the
respondents removable and pretermitted their applications for asylum as
untimely filed. However, the Immigration Judge granted their applications for
withholding of removal pursuant to section 241(b)(3) of the Immigration and
Nationality Act, 8 U.S.C. § 1231(b)(3) (2000), and accordingly denied as moot
their request for protection under the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened
for signature Dec. 10, 1984, G.A. Res. 39/46. 39 U.N. GAOR Supp. No. 51,
at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for
the United States Apr. 18, 1988). The Department of Homeland Security
(“DHS”) appealed the Immigration Judge’s grant of withholding of removal,
1 We acknowledge with appreciation the thoughtful arguments raised in the briefs submitted
by amici curiae.
432 Cite as 24 I&N Dec. 432 (BIA 2008) Interim Decision #3595
but later withdrew its appeal on September 1, 2005.2 On February 23, 2006,
the DHS filed a motion requesting that the Immigration Judge amend his order
to include language ordering each of the respondents removed to Indonesia or,
in the alternative, any other country, prior to granting withholding of removal.
In a decision dated September 13, 2006, the Immigration Judge denied the
DHS’s motion. The DHS has appealed from that decision. The appeal will be
sustained and the record will be remanded to the Immigration Judge.
The respondents are married natives and citizens of Indonesia who were
admitted to the United States as nonimmigrants and remained beyond their
authorized period of stay. On appeal, the DHS argues that it was error for the
Immigration Judge to grant them withholding of removal under section
241(b)(3) of the Act without first entering an order of removal. We agree.
Although entering an order of removal prior to granting withholding may
appear to be a technicality, it is not an insignificant one. It is axiomatic that
in order to withhold removal there must first be an order of removal that can
be withheld. Indeed, the statute providing for withholding of removal is
entitled “Detention and Removal of Aliens Ordered Removed.” Section 241
of the Act (emphasis added). This title clearly suggests that a removal order
must precede any grant of withholding of removal. See Maguire v. Comm’r,
313 U.S. 1, 9 (1941) (“While the title of an act will not limit the plain meaning
of the text, it may be of aid in resolving an ambiguity.” (citations omitted)).
The Immigration Judge held that the entry of a removal order prior to
granting withholding of removal under section 241(b)(3) of the Act was not
mandated by statute or regulation. However, we find that requiring a removal
order prior to a grant of withholding is consistent with the regulatory scheme
governing decisions rendered by Immigration Judges. The regulation at
8 C.F.R. § 1240.12(c) (2007) provides that the Immigration Judge’s order will
direct the alien’s removal from the United States, the termination of the
proceedings, or some other appropriate disposition of the case. Further, when
an alien is ordered removed, 8 C.F.R. § 1240.12(d) requires the Immigration
Judge to identify a country, or countries in the alternative, to which the alien
may be removed. Thus, the regulations contemplate that an Immigration Judge
will enter an order that leads to a final conclusion of the removal proceedings.
See Matter of Chamizo, 13 I&N Dec. 435 (BIA 1969) (finding that since the
regulations require entry of an order that will result in the conclusion of
proceedings, a grant of voluntary departure without an alternate order of
2 Because the DHS withdrew its appeal from the Immigration Judge’s October 18, 2004,
decision, we need not address his finding that the respondents are eligible for withholding
of removal under section 241(b)(3) of the Act.
433 Cite as 24 I&N Dec. 432 (BIA 2008) Interim Decision #3595
deportation is improper because it leaves the proceedings unresolved and
incomplete); see also section 101(a)(47)(A) of the Act,
8 U.S.C. § 1101(a)(47)(A) (2000) (defining the term “order of deportation”).
We find that the proceedings in this case are unresolved and incomplete
because the Immigration Judge found the respondents removable and granted
their application for withholding of removal but failed to order them removed.
Matter of Chamizo, supra. We note in this regard that a grant of withholding
of removal is not discretionary and does not afford the respondents any
permanent right to remain in the United States. INS v. Aguirre-Aguirre, 526
U.S. 415, 419-20 (1999); INS v. Cardoza-Fonseca, 480 U.S. 421, 428 n.6
(1987); see also Lanza v. Ashcroft, 389 F.3d 917, 933 (9th Cir. 2004)
(indicating that unlike an application for asylum, a grant of an alien’s
application for withholding is not a basis for adjustment to lawful permanent
resident status and only prohibits removal of the alien to the country of risk but
not to another country (citing Castellano-Chacon v. INS, 341 F.3d 533, 545
(6th Cir. 2003))). The regulations make clear that a grant of withholding does
not prevent the DHS from removing an alien to a country other than the one
to which removal has been withheld. 8 C.F.R. § 1208.16(f) (2007); see also
Huang v. Ashcroft, 390 F.3d 1118, 1121 n.2 (9th Cir. 2004) (noting that
“neither withholding nor deferral of removal prevents the government from
removing an alien to a third country other than the country to which removal
was withheld or deferred”); 8 C.F.R. § 1240.11(e) (2007) (providing that
“[n]othing in this section is intended to limit the Attorney General’s authority
to remove an alien to any country permitted by section 241(b) of the Act”).
However, if there is no final order of removal that can be executed, the DHS
has no authority to remove an alien to such an alternative country. We
therefore conclude that when an Immigration Judge decides to grant
withholding of removal, an explicit order of removal must be included in the
decision.3
Because the Immigration Judge found the respondents removable, they
remain subject to removal from the United States by the DHS as long as they
are not removed to Indonesia. The DHS is unable to remove them to another
country, however, as there is no final administrative order of removal in this
This decision addresses situations where, as here, an Immigration Judge grants only
withholding of removal, unaccompanied by a grant of asylum. In instances in which an
Immigration Judge grants both asylum and withholding of removal, an order of removal
would not normally be required, as an asylum grant does not require an order of removal.
However, if both forms of relief were granted by an Immigration Judge and the asylum grant
was later revoked, leaving only the grant of withholding of removal in place, the
Immigration Judge would be required to enter an order of removal.
434
3 Cite as 24 I&N Dec. 432 (BIA 2008) Interim Decision #3595
case. We therefore conclude that the Immigration Judge erred in denying the
DHS’s motion to amend his decision to include such an order. Accordingly,
the DHS’s appeal will be sustained and the record will be remanded to the
Immigration Judge for the entry of an order of removal.4
ORDER: The appeal of the Department of Homeland Security is sustained.
FURTHER ORDER: The record is remanded to the Immigration Judge
for further proceedings consistent with the foregoing opinion and for the entry
of a new decision.
The briefs submitted by amici curiae have presented arguments regarding the possibility
of designating multiple alternative countries for removal. We note that sections 241(b)(1)
and (2) of the Act provide the procedures by which Immigration Judges must designate the
countries to which an alien may be removed. Given the posture of this case, however, we
find it unnecessary to address this issue further.
435
4