This article discusses the overall procedure and standards set by the US Citizenship and Immigration Services (USCIS) for withdrawing various applications. At times, albeit rarely, withdrawal of an application is the best option for continuing the immigration process in the applicant’s best interests.
I. Requesting Withdrawal
Section 103.2(b)(6) of the Code of Federal Regulations states: “[a]n applicant or petitioner may withdraw an application or petition at any time until a decision is issued by the Service or, in the case of an approved petition, until the person is admitted or granted adjustment or change of status, based on the petition. However, a withdrawal may not be retracted.” An applicant who wishes to withdraw a visa petition (Form I-130, Petition for Alien Relative) should write a letter to the CIS office where the petition was filed. The letter should include:
1) the beneficiary’s name, date and country of birth, and A-number or Receipt-number;
2) the date the petition was filed;
3) the reason for withdrawing the petition and the petitioner’s name; and
4) a G-28, Notice of Entry of Appearance as Attorney or Representative, if sent by an attorney or representative.
II. Review of Withdrawal Request
In general, an applicant who is subject to removal proceedings may withdraw their application to prevent detention or removal proceedings. Withdrawal is subject to the discretion of the Attorney General however, “[a]n alien applying for admission may, in the discretion of the Attorney General and at any time, be permitted to withdraw the application for admission and depart immediately from the United States.” INA § 235(a)(4).
The Board of Immigration Appeals (“BIA” or “Board”) in Matter of Gutierrez ruled that “an alien may not withdraw his application as a matter of right but must satisfy the immigration judge that ‘justice may be best served’ by permitting withdrawal.” 19 I&N Dec 562, 564 (BIA 1988). The Board further ruled that the alien’s personal equities should not factor into the withdrawal determination, but rather a narrower balancing of “factors directly relating to… the interest of justice.” Id. at 565. These factors include, but are not limited to:
1) the alien’s intent and means to depart immediately from the United States;
2) previous findings of inadmissibility against the alien;
3) the seriousness of the offense;
4) alien’s intent to violate the law; and
5) ability to easily overcome the ground of inadmissibility (ie, lack of documents).
The Inspector’s Field Manual states that expedited removal proceedings should “ordinarily be used, rather than permitting withdrawal, in situations where there is obvious, deliberate fraud on the part of the applicant.” IFM Sec. 17.2(a). Withdrawal is appropriate however “in a situation where the alien may have innocently or through ignorance, misinformation, or bad advice obtained an inappropriate visa and has not concealed information during the course of the inspection.” Id. In other words, the decision to allow withdrawal is based on “the interest of justice” and not on the alien’s personal equities.