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Recent Blogs Posts

  1. Undocumented Transgender Woman Taken into Custody After Filing For Protective Order

    by , 04-25-2018 at 02:33 PM (Matthew Kolken on Deportation And Removal)
    Via NPR's Latino USA:

    In February of 2017, an undocumented transgender woman named Estrella González filed a protective order in an El Paso County courthouse. The judge granted her a protective order. Shortly after the protective order was granted, she was approached by immigration enforcement agents who had been waiting for her. She is facing federal charges as a result of her apprehension.



    Click here for more.
  2. The What and the Why of Torture Convention Relief

    When a person applies for asylum, she generally seeks three different types of relief: Asylum, Withholding of Removal under INA § 241(b)(3), and relief under the United Nations Convention Against Torture.


    CAT WOR

    Of the three, asylum is the best--if you win asylum, you can remain permanently in the United States, you can get a travel document, you can petition to bring certain immediate family members to the U.S., and you can eventually get a green card and become a U.S. citizen.

    But some poor souls do not qualify for asylum. Perhaps they filed too late, or maybe they are barred due to a criminal conviction or for some other reason. Such people may still be eligible for Withholding of Removal ("WOR") under INA § 241(b)(3) or relief under the United Nations Convention Against Torture ("CAT"). I've written previously about the benefits (or lack thereof) of WOR. Today I want to discuss CAT: Who qualifies for CAT? How does it differ from asylum and WOR? What are its benefits?

    To qualify for CAT, you need to show that it is "more likely than not" that you will face torture at the hands of your home government or by a non-state actor with the consent or acquiescence of the home government. If you fear harm from a terrorist group, for example, you likely cannot qualify for CAT, unless the group is controlled by the government or acting with government sanction.

    Of the applicants who fear torture, there are basically two categories of people who receive CAT: (1) Those who are ineligible for other relief (asylum or WOR) because there is no "nexus" between the feared harm and a protected ground, and (2) Those ineligible for other relief because of a criminal conviction.

    Let's talk about nexus first. "Nexus" is a fancy word for "connection." There has to be a nexus between the feared persecution and a protected ground. An alien may receive asylum or WOR only if she fears persecution on account of race, religion, nationality, political opinion or particular social group. In other words, if you fear that you will be harmed in your home country because someone hates your political opinion, you can receive asylum. If you fear harm because someone wants to steal your money, you probably don't qualify for asylum, since common crimes do not generally fall within a protected category (I've written a critique about the whole nexus thing here).

    In my practice, we sometimes encounter the nexus issue in cases from Eritrea. That country has a form of national service that is akin to slavery. People who try to escape are punished severely. However, fleeing national service does not easily fit into a protected category, and thus many Eritreans who face persecution for this reason cannot qualify for asylum or WOR. Such people are eligible for CAT, however, since the harm is perpetrated by the government and constitutes torture.

    Now let's discuss the other group that sometimes receives CAT--people with criminal convictions. Some crimes are so serious under the Immigration and Nationality Act ("INA") that they bar a person from asylum or WOR. For example, if you murder someone, you can pretty much forget about asylum or WOR. Drug crimes are also taken very seriously by the INA, as are domestic violence offenses. In fact, there is a whole area of law--dubbed "crimmigration"--that deals with the immigration consequences of criminal behavior. Suffice it to say that certain convictions will block you from asylum and/or WOR, and it is not always intuitive which crimes are considered the most serious under the immigration law.

    If you are ineligible for asylum or WOR due to a conviction, you will not be barred from CAT. The United States has signed and ratified the CAT, which basically says that we will not return a person to a country where she faces torture. So even the worst criminals may qualify for CAT relief.

    So what do you get if you are granted CAT?

    There are two sub-categories of CAT: Withholding of Removal under the CAT (which is different from WOR under INA § 241(b)(3)) and Deferral of Removal under the CAT. This means that the Immigration Judge will order the alien deported, but will "withhold" or "defer" removal to the country of feared torture. Of the two types of relief, Withholding is the more stable status. It is granted to people who do not qualify for asylum or CAT due to a nexus problem. It is also available to certain criminals, but not the most serious offenders. Deferral can be granted to anyone who faces torture in the home country, regardless of the person's criminal history. Deferral is--theoretically at least--more likely to be revoked if conditions in the home country change. In practical terms, however, there is not much difference between the two types of CAT relief.

    For both types of CAT relief, the recipient receives an employment authorization document ("EAD") that must be renewed every year. The person cannot travel outside the U.S. and return. She cannot petition for relatives to come to the United States. She can never get a green card or become a U.S. citizen (unless she is eligible for the green card some other way).

    CAT beneficiaries who are detained are not necessarily released. If the U.S. government believes that the person is a danger to the community or security of the United States, she can be kept in detention forever (in practical terms, this is pretty rare, but it is certainly possible).

    Also, sometimes ICE harassers CAT (and WOR) beneficiaries by ordering them to apply for residency in third countries. ICE officers know very well that third countries are not clamoring to accept people who we want to deport, so essentially, this is a pointless exercise. When my clients are in this situation, I advise them to comply with ICE's demands, and eventually (usually), ICE will leave you alone.

    CAT relief is certainly better than being deported to a country where you face torture. But for many people, it does not offer the security and stability of asylum. I view CAT as a last resort. We try to get something better for our clients, but we are glad it is available when all else fails.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: asylum, cat, torture Add / Edit Tags
  3. Refugee Group Urges Supreme Court to Reject Trump's "Discriminatory, Anti-Muslim and Anti-Refugee" Policies Before Muslim Ban Argument. Roger Algase

    In connection with the beginning of oral argument before the Supreme Court dealing with the latest version of Trump's Muslim Ban, Oxfam America, a refugee assistance organization, has issued a statement including the following language:

    "Today's Supreme Court case is a moment of reckoning as to whether the US will remain an inclusive, welcoming place for people of all faiths and origins, or whether the US will choose to slam its door on the basis of religion.

    Oxfam has long opposed President Trump's anti-Muslim and anti-refugee rhetoric and policies. While the legal form of the various bans may have evolved over time, the discriminatory anti-Muslim and anti-refugee sentiment behind them is clear."

    After pointing out that admission of Muslim refugees has fallen to historic lows under the Trump administration, Oxfam's statement continues:

    "We are shocked and appalled by the administration's attempt to undermine the refugee resettlement program and its continued attempts to block entry of those from Muslim-majority nations...

    "Discriminating on the basis of religion is un-American, and we hope the Supreme Court upholds this core value."

    The full statement is available at

    https://www.oxfamamerica.org/press/o...me-court-case/

    It is not only the principle of religious freedom as guaranteed by the US constitution that is at stake in the Muslim Ban case. The supremacy of the rule of law in America is also at stake, as opposed to the administration's claim of unlimited presidential power to exclude immigrants for almost any reason whatsoever, no matter how arbitrary, capricious, bad faith, or openly bigoted the motivation for such exclusion may be.

    In the light of a recent federal court decision enjoining Trump's ban against military service by another target of Trump's discrimination, namely transgender people, on the grounds that they are a "protected class" because of the long history of prejudice against LGBT's in America, it is also worth exploring whether Muslims, both immigrants and US citizens, and, beyond that, non-white immigrants in general, should be treated as a protected class with respect to whom governmental action affecting their rights should be scrutinized very carefully by the courts.

    See Karnoski v. Trump, W.D. Washington, April 18, 2018.

    This question will be discussed in greater detail in my forthcoming comment.

    Roger Algase
    Attorney at Law
    algaselex@gmail.com


    Updated 04-25-2018 at 12:48 PM by ImmigrationLawBlogs

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