Section 4: Removal Proceedings: Addressing Statelessness during Merits Hearing Once a stateless person passes the master calendar stage of removal proceedings, if she qualifies, she can present a claim for relief from removal, mostly based on humanitarian considerations. In order to do so, she must present her case for consideration on the full merits of her claim. Existing remedies for a stateless individual in removal proceedings currently include asylum (in a defensive posture), withholding of removal under INA §241(b)(3), withholding and deferral of removal under Article 3 of the UN Convention Against Torture, and for certain non-lawful permanent residents, cancellation of removal. For an asylum claim, the same elements, burden of proof, and analytical considerations as discussed in Section 3 above generally apply. As such, this section focuses only on the other forms of relief from removal. A. Withholding of Removal under INA §241(b)(3) A claim for withholding of removal (Withholding) under INA §241(b)(3) is similar to an asylum claim in that the individual must show she fears persecution due to one of five protected grounds and that the government is unable or unwilling to protect her. However, the individual subject to removal proceedings (the “respondent”) carries a heavier burden of proof to merit relief for Withholding under INA §241(b)(3): she must demonstrate a “clear probability” of persecution, meaning that it is “more likely than not” that she will be subject to persecution on account of a protected ground.157 There is no discretionary element. So, if the respondent proves eligibility, the Immigration Judge must grant withholding of removal.158 Additionally, unlike asylum, there is no statutory time limit for bringing a withholding of removal claim. While a grant of withholding of removal under INA §241(b)(3) provides some protections, a grant of Withholding without a grant of asylum159 includes an order of removal.160 As such, Withholding does not prevent DHS from attempting to remove an individual to another country other than the one to which removal is withheld.161 This is a critical legal and strategic consideration for the stateless person. A grant of withholding neither resolves the underlying issue of statelessness nor provides permanent stability, the ability to petition for reunification with family members, or to travel internationally to visit them. The absence of a permanent resolution of legal status may be particularly difficult for a stateless person who will remain in legal limbo even after successfully completing removal proceedings. B. Withholding or Deferral of Removal under the Convention Against Torture The United States is a State Party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).162 The CAT, and its U.S. implementing regulations, place an absolute prohibition on removal to a country where it is “more likely than not” that the person will be subject to torture.163 CAT protection can be a critical humanitarian protection for those who do not secure a grant of asylum or withholding of removal under INA 241(b)(3). I.N.S. v. Cardoza-Fonseca, 480 U.S. 421(1987). INA § 241(b)(3). 159 An immigration judge may find that the respondent has met both the burden for a grant of asylum, as well as withholding of removal under INA§241(b)(3) and may grant both forms of protection. 160 Matter of I-S- & C-S-, 24 I&N Dec. 432 (BIA 2008). 161 8 C.F.R. § 1208.16(f). 162 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, G.A. Res. 39/46, U.N. Doc. A/39/51, available at http://www.refworld.org/docid/3ae6b3a94.html. 163 See id.; Pub. L. No. 105-277 (1998); 8 C.F.R. §§ 1208.16, 1208.17, 1208.18; see also Matter of M-B-A-, 23 I&N Dec. 474, 477-78 (BIA 2002). 157 158 35