In this continuation of the
Instruction Series on various forms of “Relief from Removal,” Immigration
Attorney Magdalena Cuprys, Esq. examines the Deportation Defense Remedy known
as Deferral of Removal
Relief under the Convention Against
Torture (CAT) is the third form of relief an individual fearing persecution may
seek. As per another remedy, withholding of removal, Deferral of Removal
may only be granted by an Immigration Judge (IJ), and not by an Asylum Officer.
The individual applicant bears the burden of demonstrating that it
is more likely than not that they will be tortured if removed to
their country of origin.
The Board of Immigration Appeals (BIA) has found that torture
“must be an extreme form of cruel and inhuman punishment” … that “must cause
severe pain or suffering.”
There are no bars to eligibility (i.e. criminal violations, etc.)
for relief under CAT. The major advantage of CAT is that there are no bars to
eligibility under this defense to deportation.
Therefore, since the treaty itself does not contain any bars to
its mandate of non-return, even those convicted of an aggravated felony may
still make claims for relief if they do in fact fear torture upon their forced
removal from the United States to their country of origin.
Additionally, as mandated by asylum laws, applicants seeking
Deferral of Removal are not required to establish that their fear of
torture is based upon an enumerated ground, i.e. on account of race, religion,
nationality, political opinion, or membership in a particular social group.
Immigration regulations create two separate types of protection
under CAT.
The first type of protection is another form of withholding
of removal under CAT. Withholding of removal under CAT prohibits the return of
an individual to their home country. This status can only be terminated if
the individual’s case is reopened and if the DHS (Department of Homeland
Security) establishes that they are no longer likely to be tortured in
their home country.
The second type of protection is
known as “Deferral of Removal under CAT.” Deferral of removal under CAT is a more
temporary form of relief. Deferral of removal under CAT is appropriate for
individuals who would likely be subjected to torture, but who are ineligible
for withholding of removal, such as persecutors, terrorists, and certain
criminals. This status can be terminated more quickly and easily than withholding
of removal if the individual is no longer likely to be tortured if forced to
return to their home country. Additionally, an individual granted deferral
of removal under CAT may be detained by the DHS if they are deemed to be a
threat to the community.
Like regular withholding of
removal, the benefits to both forms of CAT relief are limited. An individual
who is successful under a CAT claim cannot be removed from the United States to
the country from which they fled persecution, but they can be removed to a
third country if one is available. Further, an individual granted CAT cannot
adjust their status to that of a Lawful Permanent Resident, however, they
may apply to obtain employment authorization.
The standard of proof under the CAT is higher than the standard
for asylum. The applicant must prove that it is “more likely than not” that
they would be tortured if forced to return to their country. The
evidentiary proof for torture is very similar to the proof for asylum or
withholding claims.
Individuals seeking relief under
the CAT must bring their claims before an IJ. The procedure for filing a claim
under CAT will differ depending on certain factors, including the status of an
individual’s case. If the applicant is filing for asylum, they should request
relief under withholding of removal and CAT in their Form I-589 and should
include the following information:
1.
The type of torture they
are likely to experience if forced to return to his/her country;
2.
Any past instances of torture
that they have experienced;
3.
Any past instances of torture
experienced by close family members and
associates; and
4.
Documentary support showing related
human rights abuses by the government of their country, such as: the U.S. State Department’s Human Rights
Country Reports, Amnesty International Reports, Human Rights Watch reports, and
reports from other human rights monitoring groups, etc.
If the applicant has already filed
for asylum, but did not mention withholding of removal and CAT,
they should supplement the application with the above information.
Remember that relief under
CAT is not as beneficial as asylum or withholding. It is generally used
primarily by those applicants with serious criminal convictions who may benefit
from CAT relief. Thus, while most applicants file for asylum, withholding and
CAT in the alternative, unless the applicant is statutorily ineligible for
asylum or withholding, it is unlikely that the CAT claim will be a principal
component of their case.
*** Magdalena Cuprys is the principal of Serving Immigrants,
a full-service immigration law firm offering a complete range of immigration
services to both businesses and individuals. The law firm is uniquely qualified
to manage the most contentious and unusual immigration needs. Swift resolution
of immigration-related issues is integral to a client’s ability to conduct
business or reach their personal goals in the United States. Located in Miami
and Clewiston, the firm’s offices provide corporate and individual clients of
foreign nationality with temporary work permits for the U.S., green card
petitions, criminal waivers and representation in removal proceedings cases.
With over a decade of experience, the law firm provides clients with the
confidence that their cases will be handled by an expert who understands their
needs and how to obtain their goals. Although the majority of the law firm’s
clients live in Florida, it represents people from all over the United States
and several foreign countries. References Law Firm Website: https://magdalenacupryslaw.com Other Website:
http://ww.servingimmigrants.com
Member for the American Immigration Lawyers Association (AILA), see http://www.ailalawyer.com/english/AttorneyDetail.aspx?P=19738&A=40169
Lawyer Directory: https://www.lawyer.com/magdalena-ewa-cuprys.html
LinkedIn Profile: https://www.linkedin.com/in/magdalena-cuprys-265534a/
Martindale Attorney Directory: https://www.martindale.com/organization/magdalena-cuprys-2838433
Findlaw: https://pview.findlaw.com/view/4161404_1
Media News article “Broward Transitional Center: Immigrants With No Criminal
History Get Lengthy Stays At Little-Known Jail”, published at https://www.huffingtonpost.com/2013/01/06/broward-transitional-center-immigrants-detained_n_2417664.html
See also http://articles.sun-sentinel.com/2013-01-05/news/fl-private-immigration-jail-20130105_1_illegal-immigrants-deutch-human-rights-abuses/4
See also the news reports published at http://www.jambonewspot.com/new/little-known-jail-where-immigrants-in-us-with-no-criminal-history-get-lengthy-stays/
and https://www.wptv.com/news/state/immigrants-with-no-criminal-history-get-lengthy-stays-at-private-south-florida-facility
Ms. Cuprys recently prevailed in a hotly contested asylum cases against the
U.S. Department of Homeland Security, see press release at https://www.einpresswire.com/article/452266255/immigration-attorney-magdalena-cuprys-prevails-against-u-s-department-of-homeland-security-in-disputed-asylum-claim?r=pavx1xxw1Nt_HxqPVv
and https://www.prlog.org/12714538-in-disputed-asylum-claim-florida-immigration-attorney-magdalena-cuprys-prevails-against-dhs.html
Attorney Profile: https://solomonlawguild.com/magdalena-e-cuprys%2C-esq
Attorney News: https://attorneygazette.com/magdalena-cuprys#4ccbee9f-eb68-44a7-b1df-f0b2366ba5fb
Magdalena Cuprys is the principal of Serving Immigrants, a full-service immigration law firm offering a complete range of immigration services to both businesses and individuals. The law firm is uniquely qualified to manage the most contentious and unusual immigration needs. Swift resolution of immigration-related issues is integral to a client’s ability to conduct business or reach their personal goals in the United States. Located in Miami and Clewiston, the firm’s offices provide corporate and individual clients of foreign nationality with temporary work permits for the U.S., green card petitions, criminal waivers and representation in removal proceedings cases. With over a decade of experience, the law firm provides clients with the confidence that their cases will be handled by an expert who understands their needs and how to obtain their goals. Although the majority of the law firm’s clients live in Florida, it represents people from all over the United States and several foreign countries. References Law Firm Website: www.servingimmigrants.com Member for the American Immigration Lawyers Association (AILA), see http://www.ailalawyer.com/english/AttorneyDetail.aspx?P=19738&A=40169 Lawyer Directory: https://www.lawyer.com/magdalena-ewa-cuprys.html LinkedIn Profile: https://www.linkedin.com/in/magdalena-cuprys-265534a/ Martindale Attorney Directory: https://www.martindale.com/organization/magdalena-cuprys-2838433 Findlaw: https://pview.findlaw.com/view/4161404_1 Media News article “Broward Transitional Center: Immigrants With No Criminal History Get Lengthy Stays At Little-Known Jail”, published at https://www.huffingtonpost.com/2013/01/06/broward-transitional-center-immigrants-detained_n_2417664.html See also http://articles.sun-sentinel.com/2013-01-05/news/fl-private-immigration-jail-20130105_1_illegal-immigrants-deutch-human-rights-abuses/4 See also the news reports published at http://www.jambonewspot.com/new/little-known-jail-where-immigrants-in-us-with-no-criminal-history-get-lengthy-stays/ and https://www.wptv.com/news/state/immigrants-with-no-criminal-history-get-lengthy-stays-at-private-south-florida-facility Ms. Cuprys recently prevailed in a hotly contested asylum cases against the U.S. Department of Homeland Security, see press release at https://www.einpresswire.com/article/452266255/immigration-attorney-magdalena-cuprys-prevails-against-u-s-department-of-homeland-security-in-disputed-asylum-claim?r=pavx1xxw1Nt_HxqPVv and https://www.prlog.org/12714538-in-disputed-asylum-claim-florida-immigration-attorney-magdalena-cuprys-prevails-against-dhs.html Attorney Profile: https://solomonlawguild.com/magdalena-e-cuprys%2C-esq Attorney News: https://attorneygazette.com/magdalena-cuprys#4ccbee9f-eb68-44a7-b1df-f0b2366ba5fb
