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  1. 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.


    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:
    Tags: asylum, cat, torture Add / Edit Tags
  2. 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

    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

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

  3. Bay Area Restaurants Fear ICE I-9 Audits

    By: Bruce Buchanan, Sebelist Buchanan Law

    Restaurants in the Bay area of California are on pins and needles fearful of Immigration and Customs Enforcement’s (ICE) continued assault on California due to California passing laws viewed by ICE as restricting their ability to find and detain undocumented individuals. As discussed in prior blogs, ICE has been very active in delivering Notices of Inspection (NOI)/subpoenas to California employers.

    In an article in San Francisco Chronicle,, Gwyneth Borden, executive director of the Golden Gate Restaurant Association, was quoted as stating “Everyone is fearing a day that ICE could show up at their doors.”

    When ICE conducts an I-9 inspection/audit, their agents show up at employer locations and serve a subpoena and NOI demanding the employer produce the I-9 forms of current employees, and often former employees, within three days of service. Often, these inspections are referred to as “silent raids” because they can have the same effect as a raid – loss of employees through ICE detention, terminations or quick abandonment of jobs.

    Nick Cobarruvias, co-owner of Son’s Addition, employs roughly 29 people at his restaurant. He said about two-thirds are immigrants. Cobarruvias said one employee recently failed to show up for work for several days. Both he and staff members tried contacting him to no avail. “It turned out he was picked up by ICE. Just wrong place, wrong time,” Cobarruvias said. “This is the new reality we’re dealing with. People talk about it like it’s theoretical, but this is really happening.”

  4. Immigration Judge Earle Wilson Repeatedly Finds that Victims of Rape Do Not Qualify for Asylum

    by , 04-24-2018 at 10:31 AM (Matthew Kolken on Deportation And Removal)
    Immigration lawyer Bryan Johnson reviewed the FY 2017 BIA remands and underlying decisions of Immigration Judge Earle Wilson. Judge Wilson sits on the immigration court in Atlanta Georgia, which have been infamously called the "lawless court" as a result of alleged pervasive deprivation of due process, and sexism. Judge Wilson has a 97.8 percent denial rate for asylum applications that he presided over between fiscal years 2012 through 2017.

    Click here to read excerpts from Judge Wilson's decisions denying asylum courtesy of Bryan Johnson.

    Updated 04-24-2018 at 11:13 AM by MKolken

  5. Trump's "Breeding Concept" Tweet Recalls Dark Period of White Supremacist "Eugenics Concept" Influence on the 1924 Immigration Act. Roger Algase

    Donald Trump's April 18 "Breeding Concept" tweet referring to Mexican and other mainly Hispanic immigrants in California, which I wrote about in my April 23 Immigration Daily comment, has continued to create a storm of public outrage, even as the White House refuses to explain exactly what the president meant by using this racially charged term.

    Instead, White House press secretary Sarah Huckabee Sanders argued that the word "breeding" could "mean a lot of things to a lot of people", even as DHS Secretary Kirstjen Nielsen repeated a favorite white nationalist phrase about the right of a "sovereign nation" to "defend its borders" (at a time when illegal border crossings are reportedly at one of the lowest levels in many years)!

    It may be true that the word "breeding" taken by itself could mean a number of different things, but it is much harder to make that argument when "breeding" is combined with the word "concept", as in Trump's tweet.

    In the light of US immigration history, "breeding concept" can mean only one thing: eugenics - the dark pseudo science of alleged racial superiority and inferiority which had such a great influence on the "national origins" immigration quotas of the 1924 Immigration Act excluding most immigrants who were not from the "Nordic" countries of northern Europe (which Trump, almost 100 years later, now refers to as "Countries like Norway').

    Eugenics itself is also known as the "Eugenics Concept" according to a 2008 US government National Institutes of Health article. See, Guvercin:

    Eugenics concept: from Plato to present:

    It is impossible to overlook or deny the huge influence that racist eugenics ideology has had, not only on the 1924 act (which Trump's attorney general, Jeff Sessions, lavishly praised in an "immigration Handbook" for Congressional Republicans which he published as a Senator in January, 2015, and which Adolf Hitler also praised nine decades earlier in Mein Kampf - see below).

    As the site lumen learning states in its scholarly article:

    Eugenics in the United States/Cultural Anthropology

    "The Immigration Restriction League was the first American entity associated officially with eugenics. Founded in 1894 by three recent Harvard University Graduates, the League sought to bar what it considered inferior races from entering America...

    The League
    allied itself with the American BREEDERS Association..." (Capital letters spelling added for emphasis)

    The above should make the background of Trump's "Breeding Concept" tweet just a little clearer than his press secretary was evidently aware of or willing to acknowledge.

    But this is by no means all there is in the way of background to Trump's tweet. There is much more.

    The same article goes on to explain:

    "With the passage of the Immigration Act of 1924, eugenicists for the first time played and important role in the Congressional debate as expert advisers on the threat of "inferior stock" from eastern and southern Europe."

    One might add that the 1924 Act's almost total ban against immigration by people of "inferior stock" extended not only to eastern and southern Europe, withthose areas' large Jewish and Catholic populations, but also to all non-white areas of the world (except for the "Western Hemisphere" countries which were not subject to quotas), including the entire areas of Asia, the Middle East and Africa.

    The 1924 annual US immigration quota for Germany, for example, was approximately 50,000 immigrants. For India, Japan and China, it was 100 immigrants for each country. No this is not a typographical error. I am not leaving out any zeros by mistake.

    And as the above article also mentions, the US eugenics movement (or "concept"!) had a great influence on the Nazi ideology which ultimately lead to the extermination of six million Jews in the Holocaust.

    This, of course, does not imply that Trump supports antisemitism or genocide - or course he does not. It only implied that words have great meaning and can have enormous consequences.

    While no one would assume that Trump is an expert on the history of eugenics or even of the 1924 immigration act, it is by no means unfair or inappropriate to suspect that when he uses racially loaded terms such as "breeding concept", h has been listening to certain powerful and influential immigration advisers are are only too well versed in this dark history, and are now, with the president's active cooperation, trying to bring as much of it as possible back to America's present.

    Roger Algase
    Attorney at Law

    To be continued.

    Updated 04-24-2018 at 03:41 PM by ImmigrationLawBlogs

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