The Board of Immigration Appeals’ new decision in Matter of P-A-C– should alarm anyone who still believes asylum exists as a meaningful form of protection in the United States. The Board held that a grant of withholding of removal is an “important consideration” in deciding whether to deny asylum as a matter of discretion because withholding supposedly mitigates the risk of future persecution. In other words: because the United States can’t remove the person to their home country, there’s no longer a need to grant asylum.
That might sound like a narrow discretionary ruling. It is not. The decision distinguishes Matter of Kasinga and Matter of H-, both of which had recognized the central role that danger of future persecution plays in asylum discretion. The Board now says that where withholding has been granted, asylum may be denied as a matter of discretion despite the danger of future persecution, even when there are no egregious adverse factors, because the United States is prohibited from removing to the country of persecution.
The problem is that the government is simultaneously taking the opposite position outside the courtroom. DHS has treated withholding and CAT protection as country-specific protections that do not bar removal to a third country. The current regulation says the quiet part out loud: “Nothing” in the withholding or CAT deferral provisions prevents the government from removing a person to a third country other than the country to which removal has been withheld or deferred.
That is the trap. In immigration court, withholding becomes a reason to deny asylum: “You are protected enough.” After court, withholding becomes a reason removal can continue: we can deport you wherever, just not there. The same grant of withholding is being used as both a shield against asylum and a green light for deportation. And nothing says that the other country we send you to can’t send you to your own country, even if you’re in danger there.
This is not hypothetical. In D.V.D. v. DHS, the district court described a February 2025 DHS directive that instructed officers to review cases where people had already been granted protection from removal to specific countries, based on risk of persecution or torture, in order to determine whether they could be removed to a third country and re-detained. The court later concluded that DHS’s third-country removal policy was unlawful and set it aside, though the litigation has continued through stays and appeals. The issue is now before the First Circuit Court of Appeals.
The real-world consequences are already visible. Reuters reported that Rabbiatu Kuyateh was granted withholding of removal to Sierra Leone, deported instead to Ghana, and then forcibly returned to Sierra Leone once she got to Ghana. It also reported that at least 22 people deported to Ghana were sent to their home countries despite U.S. court-ordered protections meant to prevent that result. AP recently reported that asylum seekers deported by the United States to Sierra Leone face possible return to countries where U.S. courts had already recognized they feared persecution.
This is “chain refoulement.” The United States can’t deport someone to a country where we know they’ll be tortured, so we deport them to Ghana and Ghana deports them to that country.
The countries involved are not incidental. Reuters has reported that the Central African Republic agreed to accept third-country deportees and that the United States has sent third-country deportees to African countries including the Democratic Republic of Congo, Ghana, Sierra Leone, and Equatorial Guinea. Amnesty has reported that Eswatini agreed to accept up to 160 third-country nationals removed from the United States in exchange for $5.1 million in border and migration-management funding. These people have no legal authority to live in those countries, though, so eventually they’re removed to their home countries (where they will be tortured or worse).
This is why Matter of P-A-C- is so dangerous. It doesn’t engage with third country removal or chain refoulement. It treats withholding as though it solves the risk that asylum is meant to address. But withholding is not asylum. Asylum is a status. It can protect against removal unless terminated, create derivative protection for spouses and children, and provide a path to lawful permanent residence after one year. Withholding, by contrast, leaves the person under a final order of removal and only prevents removal to the particular country where persecution was found likely.
No one needs to minimize the facts in P-A-C- to see the structural problem. The respondent had multiple DUI convictions, and the Board relied heavily on those adverse factors. But it also said that even without those “egregious” factors, a withholding approval is enough to justify denying asylum. The dangerous move is not simply that this respondent lost asylum in discretion. The dangerous move is that the Board used the grant of withholding itself to reduce the weight of future persecution when that’s just utterly false.
It turns asylum law upside down. The person who proves a higher likelihood of persecution and wins withholding can now be told that this very victory makes asylum less necessary. Then, once asylum is denied, the government can invoke the country-specific nature of withholding to search for a third country willing to take them. The applicant has not been protected. The applicant has been placed in a deportation pipeline that will easily subject them to chain refoulement. They get fewer rights, no permanent status, no derivative protection for family, and no meaningful guarantee against chain refoulement.
The core contradiction should be intolerable: withholding cannot be enough protection to deny asylum and too little protection to stop third-country removal. But that is exactly the architecture now being built.
If this logic holds, asylum does not disappear all at once. It becomes hollowed out from the inside. The government can concede or lose on persecution, allow withholding, deny asylum in discretion, and then pursue removal to a country the person has no connection to. For the people trapped in that sequence, asylum is not merely harder to win. It is functionally dead.
That is why it is absolutely critical to fight, now more than ever.
Practitioners should not treat discretionary asylum denials after a withholding grant as ordinary balancing decisions or harmless consolation prizes. Reserve appeal. Build the record from the beginning that withholding is not asylum: it provides no permanent status, no derivative protection, no path to residence, and no protection against removal to a third country.
We should force IJs and the Board to confront the contradiction between treating withholding as sufficient to discount persecution risk in court and treating it as country-specific and insufficient to prevent removal afterward. And when the agency relies on P-A-C- to deny asylum in discretion, practitioners should preserve every issue: the abuse of discretion, the failure to weigh the distinct benefits of asylum, the family-unity regulation, the risk of chain refoulement, and the arbitrariness of using a mandatory protection grant as a reason to deny discretionary protection. This fight has to happen in immigration court, at the Board, and especially in the courts of appeals, because if this logic takes hold, asylum will not need to be formally repealed. It will have been made practically unavailable precisely to the people who have already proven that return would put them in danger.