Rescinding Withholding of Removal

Date of Information: 04/21/2025

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Understanding When and Where Withholding Can Be Revoked

Withholding of removal offers vital protection to individuals facing the threat of persecution in their home countries. However, this protection is not necessarily permanent. Under U.S. immigration law, withholding of removal can be revoked under specific circumstances — but only through careful, formal legal procedures.

If you were granted withholding of removal, or if you are currently seeking to protect your status, it is important to understand your rights and what the government must do before your protection can be taken away.

Legal Basis for Revocation

The authority to revoke withholding of removal comes from two main sources:

8 C.F.R. § 208.24(a)(3) — This regulation provides that a grant of withholding of removal may be rescinded if the conditions that justified the original grant no longer exist, or if the individual becomes subject to mandatory denial of withholding under the law.
Immigration and Nationality Act (INA) § 241(b)(3) — This section lays out the substantive protections against removal, and outlines the exceptions where removal may proceed, such as if the person committed a particularly serious crime or is deemed a danger to the community.

In short, the government cannot revoke your withholding of removal arbitrarily. Specific grounds must exist, and they must be properly adjudicated.

Grounds for Revocation

Common reasons the government may seek to revoke withholding of removal include:

Change in Country Conditions: If the conditions in your home country have fundamentally changed such that you would no longer face persecution.
Criminal Conduct: If you are convicted of a "particularly serious crime" after your grant of withholding, making you ineligible to maintain protection.
Fraud or Misrepresentation: If your original application was based on false information or material misrepresentations.

Each of these grounds must be evaluated carefully against the legal standards set forth in both statutory law and case law.

A Hearing Is Generally Required

You have the right to a hearing before your withholding of removal can be revoked.

Under 8 C.F.R. § 208.24(f), the Department of Homeland Security (DHS) must file a motion to reopen your immigration proceedings in order to seek revocation. This motion is filed with the immigration court that originally granted withholding. The immigration judge must then hold a hearing, during which you have the right to:

Be represented by counsel
Present evidence
Cross-examine government witnesses
Challenge the government's evidence

Revocation cannot happen behind closed doors. It must be part of a transparent legal process where you have an opportunity to defend yourself.

Key takeaway: Unless you consent to revocation or waive your rights, the government cannot revoke your withholding of removal without giving you notice and an opportunity to be heard before an immigration judge.

Where Revocation Proceedings Happen

Revocation proceedings are typically held at the immigration court where your original case was decided. The case number and court location are tied to your initial grant of withholding. If you have moved, your case may be transferred to a new court based on your updated address (Form EOIR-33 must be filed to update the court).

It is critical to stay updated on your address with the immigration court to ensure you receive all notices about any motions or hearings regarding your status.

Why Kilmar Abrego Garcia’s Deportation was Illegal

Abrego Garcia’s deportation constituted a violation of due process because he had previously been granted withholding of removal, and the government failed to properly revoke that protection according to law. Under the applicable regulations, notably 8 C.F.R. § 208.24(a)(3), a grant of withholding of removal remains in place unless and until it is properly rescinded. The regulation provides that withholding may be terminated only if specific statutory grounds exist — such as a fundamental change in circumstances or commission of a particularly serious crime — and even then, revocation must follow formal procedures.

Critically, 8 C.F.R. § 208.24(f) requires the Department of Homeland Security to file a motion to reopen with the immigration court in order to seek rescission of withholding. This process must afford the individual full due process protections, including notice, an opportunity to be heard, the right to present evidence, and a hearing before an immigration judge. No such motion was filed in Abrego Garcia’s case, and no hearing was conducted. As a result, his withholding of removal remained legally intact at the time of his deportation.

Because the government removed Abrego Garcia without first properly revoking his withholding through a motion to reopen and a hearing, his deportation violated his constitutional right to due process under the Fifth Amendment. Due process requires that individuals not be deprived of a protected liberty interest — such as the right to remain in the United States under a grant of withholding — without fair procedures. The government's failure to follow the mandatory regulatory procedures rendered Abrego Garcia’s deportation unlawful.

Protecting Your Withholding of Removal

If the government initiates proceedings to revoke your withholding of removal, you should immediately seek experienced legal representation. Successfully defending your status will require a strong legal and factual defense tailored to the government's specific allegations.

At Charles International Law, we provide trusted, aggressive representation to individuals defending their right to remain safely in the United States. If you have received notice of a motion to reopen or believe your status may be at risk, please schedule a consultation with us.

Other Helpful Resources:

USCIS Website on Asylum