The Limits of Asylum: How a Grant of Withholding of Removal May Influence the Exercise of Discretion

A Discussion of Matter of P-A-C 29 I&N Dec. 708 (BIA 2026)

Introduction

Asylum is often viewed as the ultimate form of humanitarian protection under United States immigration law. For many applicants, proving past persecution or establishing a well-founded fear of future persecution is considered the primary hurdle to obtaining relief. However, a recent precedential decision issued by the Board of Immigration Appeals ("BIA") serves as an important reminder that establishing eligibility for asylum does not necessarily guarantee approval.

In Matter of P-A-C, the Board addressed a situation in which a respondent successfully obtained withholding of removal but was nevertheless denied asylum as a matter of discretion. The decision highlights a critical yet often overlooked principle of asylum law: the distinction between statutory eligibility and the favorable exercise of discretion.

The case also raises a broader question that frequently arises in removal proceedings: Can an applicant who proves a fear of persecution still be denied asylum? According to the Board, the answer is yes.

Understanding the Difference Between Asylum and Withholding of Removal

Before discussing the Board's analysis, it is important to understand the distinction between asylum and withholding of removal. Although both forms of relief protect individuals from being returned to countries where they face persecution, they are fundamentally different.

A grant of asylum provides significant immigration benefits, including:

• Protection from removal;

• Eligibility for employment authorization;

• The ability to petition certain family members;

• A pathway to lawful permanent residence; and

• Eventual eligibility for U.S. citizenship.

  
  

By contrast, withholding of removal provides more limited protection. It prohibits the government from removing an individual to a specific country where persecution is likely to occur but does not provide a path to permanent residence or citizenship. In many cases, withholding of removal is considered a lesser form of protection than asylum. Nevertheless, Matter of P-A-C demonstrates that withholding of removal may play a significant role in the discretionary analysis of an asylum application.

The Two-Step Framework for Asylum Adjudications

One of the most important lessons from Matter of P-A-C is that asylum adjudications involve two separate inquiries.

Step One: Statutory Eligibility

The first step focuses on whether the applicant is legally eligible for asylum. To establish eligibility, the applicant must demonstrate:

• Past persecution or a well-founded fear of future persecution;

• A nexus to a protected ground;

• Credible testimony and supporting evidence; and

• The absence of any statutory bars to asylum.

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This portion of the analysis focuses exclusively on legal eligibility.

If the applicant satisfies these requirements, the applicant has established eligibility for asylum. However, the analysis does not end there.

Step Two: The Exercise of Discretion

Even after statutory eligibility has been established, Immigration Judges must determine whether the applicant merits asylum as a matter of discretion. Unlike withholding of removal, asylum is a discretionary benefit. When exercising discretion, Immigration Judges balance favorable and adverse factors appearing in the record.

Positive factors may include:

• The severity of past persecution;

• The likelihood of future persecution;

• Family ties in the United States;

• Long-term residence in the United States;

• Employment history;

• Community involvement;

• Rehabilitation efforts;

• Good moral character; and

• Humanitarian considerations.

  
  

Negative factors may include:

• Criminal convictions;

• Immigration fraud or misrepresentations;

• Repeated violations of law;

• Public safety concerns;

• Failure to comply with court orders; and

• Other conduct reflecting negatively on the applicant's character.

  
  

Although courts have recognized that the danger of persecution ordinarily outweighs all but the most serious adverse factors, Immigration Judges retain substantial discretion to deny asylum when negative factors outweigh favorable equities. Matter of P-A-C serves as a powerful example of how that discretionary balancing process operates in practice.

What Happened in Matter of P-A-C?

The respondent in Matter of P-A-C, a native and citizen of Cameroon, sought multiple forms of relief from removal, including:

• Asylum;

• Withholding of removal;

• Adjustment of status; and

• Cancellation of removal.

  
  

The Immigration Judge granted withholding of removal after concluding that the respondent could not safely return to Cameroon. However, the Immigration Judge denied asylum, adjustment of status, and cancellation of removal as a matter of discretion. The Board affirmed those denials.

The respondent presented numerous favorable equities, including:

• Strong family ties in the United States;

• Long-term residence in the country;

• Business ownership;

• Church involvement;

• Tax compliance;

• Medical and psychological concerns;

• Evidence of rehabilitation; and

• A demonstrated fear of persecution in Cameroon.

  
  

Despite these favorable factors, the Board concluded that the respondent's criminal history outweighed the positive equities. The record reflected multiple DUI convictions as well as other driving-related violations. While the criminal history was significant, the most important aspect of the decision was not the DUI analysis itself. Rather, it was the Board's discussion of how a grant of withholding of removal affects the discretionary analysis in asylum cases.

The Most Significant Holding: How Withholding of Removal May Influence Asylum Discretion

The most noteworthy aspect of Matter of P-A-C is the Board's recognition that a grant of withholding of removal is both a favorable factor and a circumstance that may reduce the humanitarian necessity of asylum. The Board acknowledged that withholding of removal is an important favorable consideration because it reflects a finding that the respondent cannot safely return to the country of persecution. However, once withholding of removal has been granted, the respondent already possesses protection against removal to that country.

As a result, the Immigration Judge may determine that the most pressing humanitarian concern has already been addressed. This changes the discretionary balance, because the respondent can no longer be removed to the country where persecution is feared, Immigration Judges may place greater emphasis on adverse discretionary factors that otherwise might have been outweighed by the danger of persecution.

In practical terms, Matter of P-A-C suggests that a successful withholding claim does not necessarily strengthen an applicant's case for asylum. Instead, it may permit an Immigration Judge to conclude that the applicant has already received sufficient humanitarian protection, making a discretionary grant of asylum unnecessary. This principle is likely to have significant implications in future removal defense litigation.

Why This Decision Matters for Removal Defense Practitioners

Matter of P-A-C reinforces several important principles that practitioners should consider when preparing asylum cases involving adverse discretionary factors. First, statutory eligibility and approval are not synonymous. An applicant may successfully establish refugee status and still be denied asylum as a matter of discretion.

Second, withholding of removal does not guarantee asylum. Although withholding is an important favorable factor, it may also influence how Immigration Judges evaluate the overall balance of equities.

Third, practitioners should focus not only on proving persecution but also on developing a compelling discretionary record. Evidence of rehabilitation, community involvement, family support, employment history, and positive contributions may become critical in cases involving criminal history or other adverse factors.

Finally, the decision serves as a reminder that Immigration Judges possess substantial discretion when adjudicating asylum applications. A strong legal claim may not be enough if significant adverse factors remain unaddressed.

Practical Lessons for Asylum Applicants

For asylum applicants, Matter of P-A-C underscores the importance of presenting more than evidence of persecution. Applicants should be prepared to demonstrate:

• Rehabilitation from prior misconduct;

• Positive contributions to their communities;

• Strong family relationships;

• Employment and tax compliance;

• Evidence of good moral character; and

• Other favorable equities that support a grant of relief.

  
  

Immigration Judges evaluate the totality of the circumstances. The stronger the discretionary record, the greater the likelihood that an applicant will receive a favorable exercise of discretion.

Conclusion

Matter of P-A-C provides an important clarification regarding the role of discretion in asylum adjudications, and how a grant of withholding of removal could negatively impact asylum where applicants present negative factors. The decision reminds practitioners and applicants alike that asylum is a two-step process. Establishing statutory eligibility is only the beginning. An applicant must also demonstrate that a favorable exercise of discretion is warranted.

Most significantly, the Board explained that a grant of withholding of removal may alter the discretionary analysis by reducing the humanitarian necessity of asylum. Once protection from removal to the country of persecution has been secured, Immigration Judges may place greater weight on adverse factors that remain in the record.

As removal defense litigation continues to evolve, Matter of P-A-C is likely to become an important reference point for cases involving discretionary asylum determinations and the relationship between asylum and withholding of removal.

About the Author

Andy Viera-Rivera, Esq., LCSW is the Founder and Principal Attorney of The Viera Law Firm, PLLC. He is admitted to practice law in New York, Massachusetts, and Puerto Rico, and is also a Licensed Clinical Social Worker in New York.

Prior to entering private practice, Mr. Viera-Rivera served as an Assistant Chief Counsel with the Department of Homeland Security, Office of the Principal Legal Advisor (OPLA). His practice focuses on asylum, removal defense, family-based immigration, and humanitarian relief.

The Viera Law Firm, PLLC represents clients nationwide in immigration matters and in New York, Puerto Rico, and Massachusetts for state law matters within the firm's areas of practice. To schedule a consultation, please contact our office.

The Viera Immigration Review provides analysis of immigration law developments, BIA decisions, federal court opinions, USCIS policy updates, and removal defense litigation.

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Immigration laws and regulations are complex and subject to change. Individuals should consult with a qualified attorney regarding their specific circumstances before making any legal decisions or taking any action based on the information discussed herein. Prior results do not guarantee a similar outcome. Every case is unique and must be evaluated on its own facts and applicable law.