RAICES Bulletin: DOJ Uses BIA to Limit Access to Asylum

By RAICES Public Affairs Director Javier Hidalgo, Esq.

TL;DR The Board of Immigration Appeals (BIA) held that granting withholding of removal can justify denying asylum, giving Immigration Judges (IJs) the green light to weigh withholding as a factor to deny asylum claims.

WHAT TO KNOW

• Issue: In Matter of P-A-C-, 29 I&N Dec. 708 (BIA 2026), the BIA held that granting withholding of removal can justify denying asylum. Even if the risk of future persecution risks exist, the BIA reasoned that withholding mitigates this risk by barring removal to the persecuting country.    

• Rationale: Departing from its own precedent, the BIA argued those prior rulings overlooked the protections offered by withholding. Because withholding theoretically prevents removal to a feared country, IJs can now weigh it as a mitigating factor to deny asylum.    

• RAICES Impact: RAICES advocates face tougher battles when representing asylum seekers. Because IJs can use successful withholding claims to negate the need for asylum, practitioners should emphasize why an asylum grant is the most appropriate relief in each specific case. Representatives should watch for a chilling effect on applicants simultaneously seeking asylum, withholding, and Convention Against Torture (CAT) protections. While requesting all three is standard, this decision may shift that calculus, creating a risk that relevant arguments might not be preserved for appeal. Practitioners must remain highly vigilant against government attempts to remove withholding recipients to unfamiliar third countries.    

• Community Impact: This decision encourages IJs to deny asylum in favor of withholding. While withholding stops deportation to a specific dangerous country, it leaves individuals under a final removal order, stripping them of family derivative protections and a pathway to citizenship. Recipients risk removal to unfamiliar third countries where they may still face persecution. There is a profound fear that these third countries could deport the individual or family back to the country they originally fled.      

• Related Legal Battles: This ruling will likely trigger federal circuit court litigation challenging the BIA's deviation from established precedent and its dismissal of future persecution risks. Beyond direct challenges to the decision itself, advocates may litigate the specific weight IJs give to withholding grants in individual cases.    

• Broader Immigration Strategy: The administration's broader agenda to end asylum access includes weaponizing the BIA to create new precedents. To achieve this, government attorneys strategically appeal cases involving unrepresented applicants who are unlikely to respond. By glossing over the unique facts of individual cases, the BIA attempts to enact sweeping changes without adhering to standard Administrative Procedure Act (APA) protocols. Using withholding to deny asylum creates a severe structural loophole: individuals are protected from their persecuting country, but regulations still permit their removal to a completely different third country.