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. 

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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. 

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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 

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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 

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