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The Deportation or Removal Case is Never Over Until the ?Asylum, Withholding of Removal, & CAT? Lady Sings
Posted by: ScottMond Law Firm
April 18, 2012

Unfortunately, under current U.S. Immigration laws, there are numerous reasons that someone who is non-citizen of the United States may find themselves placed in removal proceedings when interacting with agencies such as Customs Border and Patrol ("CBP"), ICE, or U.S. Citizenship and Immigration Services ("USCIS"). The reasons range from technical reasons, to prior criminal history, improperly granted immigration benefit that a Senior USCIS officer unveils, or extended absences from the United States. Also a non-citizen (such as a Permanent Resident) could travel overseas for a brief trip, only to be surprised that he or she is not being admitted back to the United States by CBP due to a "newly" discovered problem.

The purpose of this blog article is not to discuss all the triggers that may cause a U.S. Permanent resident or non-immigrant visa holder to be suddenly placed in removal proceedings. Rather, the focus is that if such a situation arises it is important to have experienced immigration counsel aggressively fight the matter, even where a past criminal history may exist.

If you or someone you know finds themselves in deportation or removal proceedings he or she will be asked by the Immigration official verbally or in writing whether you have a fear of returning to your home country. It is very easy to say "no" or "yes". However, it is important not to state either answer unless one consults with a U.S. Immigration attorney. In U.S. Immigration legal terms, a fear of returning to one's home country is called "Asylum, Withholding of Removal and/or CAT". These are very legal definitions and not only factually driven. Under pressure, our clients, who in fact had a fear, quickly gave CBP officials an answer (without legal counsel) in hopes that the pressure of being questioned by U.S. Immigration authorities would go away.

Even if one has a criminal history, as long as the crime is NOT a Particularly Serious Crime. ("PSC"), this will not bar one's right to fight and defend oneself in U.S. Immigration Proceedings based on fear of returning to your home country. An Immigration lawyer has to review the following PSC bars, to determine whether a particular crime could bar a non-citizen's ability to claim Asylum or Withholding of Removal.

INA §208(a)(2)(A)(ii): This section precludes eligibility for asylum if the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States.

INA § 208(a)(2)(B)(i): ... an alien who has been convicted of an aggravated felony shall be considered to have been convicted of a particularly serious crime.

Unless a determination is made by legal counsel that one's prior criminal history does or does not amount to a Particularly Serious Crime ("PSC"), as legally defined above, it is critical that a non-citizen with a past criminal history not deny away this very important legal relief and defense option.

If you have any questions or concerns you may contact our firm by emailing us at info@scottcclaw.com or visit us at http://www.scottcclaw.com/ where our telephone numbers are conveniently listed for your convenience.

ScottMond Law Firm

http://www.scottcclaw.com/

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When Returning to your Home Country From the United States Is NOT an Option Asylum, Withholding of Removal and CAT
Posted by: ScottMond Law Firm
May 13, 2011

Asylum

Asylum status may be given to an individual who meets a very strict definition of refugee. A refugee or asylee is defined as any person outside his or her county of nationality (or in the case of a persons having no nationality, their last habitual residence) who, because of a "well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion, is unable or unwilling to return to that country, and is unable or unwilling to avail him or herself of the protection of that country. There are conditions where a refugee is also someone still residing in their country which is not discussed in this brief article.

An asylee must apply within one year of arrival in the U.S. If the foreign national is placed in removal, and has never applied for asylum relief, they must then seek Withholding of Removal or CAT in court which is explained below. Once an individual is granted asylum they will eventually be able to adjust to a Permanent Resident and eventually Citizenship.

Withholding of Removal

While this option is similar to asylum, withholding of removal and CAT (explained below) is available when a foreign national does not meet the criteria for asylum, such as filing within one year. Also, Withholding of Removal/CAT is available if a foreign national is placed in removal or deportation proceedings.

Withholding of Removal found in INA 241(b)(3); 8 CFR 208.16 requires an applicant to demonstrate the following:

An applicant must show a clear probability of harm, or that it is more likely than not that her life or freedom would be threatened (on account of race, religion, nationality, membership in a particular social group, or political opinion) if returned to his or her home country. The standard here is higher than asylum "which is a well founded fear".

Withholding is mandatory if Attorney General determines that the applicant's life or freedom would be threatened. While there are important benefits gained such as the applicant's ability to receive work authorization, this is not an automatic right to remain in the United States. The Department of Homeland Security ("DHS") may impose conditions; remove the individual to a third country, and/or move to revoke the status. Client cannot apply directly for lawful permanent residency, and client cannot petition to bring family members to the U.S. except certain conditions and exceptions are met.

CAT

CAT, which stands for the United Nations ("UN") Convention Against Torture ("CAT") is also available to clients who are in removal proceedings or who have failed to meet the criteria for asylum. Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

If it is more likely than not that an applicant will be tortured then no State shall expel, return or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger ofbeing subjected to torture.

The above explanation of Asylum, Withholding of Removal and CAT are complex legal arguments which require an experienced immigration attorney to navigate the hurdles and obstacles when an individual is fearful and it is unsafe to return home. If you or someone you know is in serious danger if they return to their home country, you may contact us with your questions or concerns at info@scottcclaw.com or 703.955.7998.

ScottMond Law Firm

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