As shown in the charts below, criminal convictions for drug offenses are still the primary reason that legal permanent resident are ordered removed from the United States. These are based on the most recent data available from the Department of Justice, Executive Office of Immigration Review. 2021 2020 2019
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540-Day Automatic Extension Rule Ends October 26, 2023 On May 3, 2022, USCIS announced a Temporary Final Rule (TFR) increasing the automatic extension period for certain Employment Authorization Document (EAD) renewal applications to up to 540 days. The TFR ends today, October 26, 2023. Eligible applicants who filed before October 26, 2023 will receive the 540-day extension. Eligible applicants who file their EAD renewal applications after today will still receive an automatic 180-day extension on their work authorization. For more information about employment authorization you can check the wiki.
As per international and U.S. law, the principle is clear that an individual cannot be returned to a country where they are likely to be subjected to torture. US law has created a legal process specifically designed to comply with the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (commonly known as “CAT” or “the Convention”) obligates countries that are signatories to condemn and prohibit torture. Article III of the Convention explicitly states that a signatory nation is prohibited from “expelling, returning, or extraditing” an individual to a country where there exist “substantial grounds for believing that he would be in danger of being subjected to torture.” The United States joined CAT in 1988, with Congress ratifying the treaty in 1994. In 1998, the U.S. officially declared its intent to implement CAT as part of the Foreign Affairs Reform and Restructuring Act (“FARRA”). In 1999, the former Immigration and Naturalization Service established regulations that outline the standards and procedures for protection under the Convention. These regulations are detailed in 8 C.F.R. §§ [1]208.16 to [1]208.18. Protection under Article III of the Convention serves as a crucial option for noncitizens who do not meet the prerequisites for asylum but can demonstrate that they would face torture if they were to return to their home country. Importantly, relief under the Convention is not a matter of discretion. For those individuals who meet the eligibility requirements, it is mandatory for the immigration judge (IJ) to grant them protection. What Is Considered Torture? The regulations contain a definition of torture and list the types of acts that constitute torture.8 CFR § 1208.18(a)(1) provides: Torture is defined as any act by which severe pain or suffering, whether physical or mental, isintentionally inflicted on a person for such purposes as obtaining from him or her or a thirdperson information or a confession, punishing him or her for an act he or she or a third personhas committed or is suspected of having committed, or intimidating or coercing him or her ora third person, or for any reason based on discrimination of any kind, when such pain orsuffering is inflicted by or at the instigation of or with the consent or acquiescence of a publicofficial or other person acting in an official capacity. That statute denotes three essential elements for torture: (1) the intentional infliction, (2) of severe pain and suffering (physical or mental), (3) committed by or at the acquiescence of the government. The regulation goes on to provide the following limitations to the definition: The act of torture “must be specifically intended to inflict severe physical or mental pain or suffering” and “an act that results in unanticipated or unintended severity of pain and suffering is not torture.” The regulations state that to qualify for protection under CAT, the torture must be “specifically intended to inflict severe physical or mental pain or suffering.” Government Actor or Government Acquiescence Applicants seeking CAT (Convention Against Torture) relief are required to establish that the torture they are at risk of experiencing will be perpetrated “by or at the instigation of or with the consent or acquiescence of a public official or another person acting in an official capacity.” When the torturer’s actions are clearly linked to an official governmental policy or a consistent pattern of behavior, indicating that they are acting in their official capacity, it constitutes an unmistakable case of an official act. However, situations may arise where a lower-level government employee engages in acts of torture without explicit authorization from the government. “‘[r]ogue officers’ or ‘rogue officials’ are public officials who act outside of their official capacity, or, in other words, not under color of law.” Matter of O-F-A-S-, 27 I&N Dec. 709, 713–14 (BIA 2019). How Does A Respondent Prove Torture for CAT Protection? Applicants may present various types of evidence to support their claim: It’s important to note that the burden of proof lies with the applicant. Relocation Unlike the asylum and withholding of removal regulations, the CAT regulations do not state that the applicant must only prove that internal relocation would not be reasonable. At the same time, the regulations do not require a showing that the applicant could not live safely elsewhere in the country. The Ninth Circuit has clarified that an applicant for CAT need not prove that relocation within the country of removal is “impossible.” Instead, “the IJ must consider all relevant evidence” and “no one factor is determinative.” But it is the applicant’s burden to prove a likelihood that they will be tortured if removed, so whether internal relocation is a possibility is part of that inquiry. The Second Circuit recently took the same position, pointing out that the regulations “do not require an applicant to prove that it is not possible to relocate to a different area of the country in order to evade torture.” How Does Someone Apply For CAT Protection? As of April 1, 1997, asylum applications are also subject to evaluation for eligibility for withholding of removal under the Convention Against Torture (CAT) if the applicant either requests such consideration or if the evidence presented suggests that the applicant may be subjected to torture in the country of removal. The same application form, Form I-589, is used for both asylum and withholding of removal, and it is also the form used for CAT relief. While it is possible to apply solely for CAT using Form I-589, applicants typically use the form to request all three forms of relief unless there is a clear bar to asylum and withholding. An applicant is considered for CAT relief by checking the “Torture Convention” box in the I-589 form. For CAT relief, an applicant must demonstrate that “it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” This standard is defined as a probability greater than fifty percent. It’s important to note that the testimony of the applicant, if found credible, … Read more
For nearly a century, the United States has upheld a fundamental promise: no person shall be deported to a country where they would face persecution. In line with laws enacted to honor this commitment, tens of thousands of individuals seek protection in the United States each year. The majority of these individuals apply for asylum. Those who are granted asylum can pursue permanent residence in the United States and a pathway to citizenship. Additionally, they have the opportunity to request that their spouse and children join them in the United States. However, not everyone is eligible to apply for asylum. For those individuals who fear persecution in their home country but do not meet the criteria for asylum, an alternative avenue for protection exists, known as withholding of removal. This form of relief is more challenging to obtain and comes with fewer benefits. The Difference Between Asylum and Withholding of Removal An individual granted asylum enjoys several significant benefits, including protection from being returned to their home country. They are eligible to apply for work authorization in the United States, can request a Social Security card, seek permission for overseas travel, and have the option to petition for the reunification of family members in the United States. Asylees may also qualify for certain government programs such as Medicaid or Refugee Medical Assistance. It’s essential to understand that asylum is technically a discretionary benefit, and there are legal restrictions on who can be granted asylum. For instance, individuals who have been previously deported and subsequently reentered the United States, or those who did not apply for asylum within one year of their arrival, are prohibited from applying for asylum. In such cases, individuals who are ineligible for asylum may generally seek “withholding of removal” instead. Much like in the case of asylum, an individual granted withholding of removal is shielded from being sent back to their home country and is granted the right to remain in the United States, where they can work legally. However, it’s important to note that at the conclusion of the court process, an immigration judge issues a deportation order, but the government is instructed not to carry out that order. In essence, the person’s “removal” to their home country is “withheld.” Nevertheless, the government retains the authority to deport this individual to a different country if that country agrees to accept them. Withholding of removal offers a form of protection that is less certain compared to asylum, placing its recipients in a kind of limbo. Those granted withholding of removal may not leave the United States without executing the removal order. They are unable to petition for the reunification of family members in the United States, and there is no pathway to citizenship. Unlike asylum, in cases where a family seeks withholding of removal together, a judge may grant protection to a parent while denying it to the children, potentially leading to family separation. Furthermore, withholding of removal does not provide permanent protection or a route to permanent residence. If conditions improve in an individual’s home country, the government can revoke withholding of removal and once again seek their deportation. This revocation can occur even years after the person has been granted protection. Some individuals, including those who were convicted of “particularly serious crimes,” are not eligible forwithholding of removal. Noncitizens that are ineligible for withholding of removal are further limited to applying for relief under protection under the Convention Against Torture, a protection that is even more difficult to win than withholding of removal and that offers even fewer benefits. How Do I Apply For Withholding of Removal? Unlike asylum, which can be granted by asylum officers employed by U.S. Citizenship and Immigration Services (USCIS), withholding of removal is exclusively within the authority of immigration judges working within the immigration court system. Individuals may find themselves in immigration court through various means, including an unsuccessful asylum application, apprehension within the country by U.S. Immigration and Customs Enforcement (ICE), or apprehension by U.S. Customs and Border Protection (CBP) at or near the border. Withholding Only Proceedings In situations where individuals with prior deportation orders are apprehended after reentering the United States, the law allows for the reinstatement of the earlier removal order. If someone with a prior removal order who fears persecution is encountered by ICE or CBP, they are not eligible for full removal proceedings in immigration court but may seek withholding of removal in what are referred to as “Withholding Only Proceedings.” When an individual expresses a fear of persecution to an immigration officer who is considering the reinstatement of a previous removal order, the officer is mandated to initially refer the individual to an asylum officer. Those who can demonstrate to the asylum officer that they have a “reasonable fear” of persecution in their home country are subsequently sent to immigration court for a specialized form of removal proceedings, in which the only relief they may pursue are withholding of removal or protection under the Convention Against Torture. Withholding-only proceedings represent a relatively small subset of asylum in immigration court. In recent years, between 70,000 and 80,000 asylum seekers have been referred to immigration court annually through the credible fear process.24 In total, more than 213,000 people applied for asylum in Fiscal Year (FY) 2019. The most common pathway for individuals to enter withholding-only proceedings is through an interview conducted at the border with an asylum officer. Individuals without prior orders of deportation who can establish a “credible fear” of persecution in their home country are directed to standard removal proceedings, where they may apply for asylum. However, individuals with previous deportation orders are ineligible for asylum and face a more demanding burden of proof. If they can successfully demonstrate to the asylum officer that they have a “reasonable fear” of persecution in their home country, they are then directed to withholding-only removal proceedings, where they may seek withholding of removal, but not asylum. Since 2012, the number of individuals found to … Read more
The Board of Immigration Appeals published a decision holding that when a respondent has a pending appeal under section 460.30 of the New York Criminal Procedure Law the criminal conviction his not yet final and therefore the respondent has not been “convicted” as defined by INA §1101(a)(48)(A). Matter of Brathwaite Matter of Brathwaite, 28 I&N Dec. 751 (BIA 2023) The respondent filed a motion to terminate his removal proceedings. The Department of Homeland Security (“DHS”) opposes the motion. The Immigration Judge had denied the motion and found the respondent removable and the Board had originally affirmed. The Board of Immigration Appeals was remanded the case by the Second Circuit Court of Appeals to determine the finality of the respondent’s criminal convictions under section 101(a)(48)(A) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101(a)(48)(A) (2018), and to reassess whether heis removable as charged. Brathwaite v. Garland, 3 F.4th 542 (2d Cir. 2021). Facts of the Case The respondent is a native and citizen of Trinidad and Tobago and a lawful permanent resident of the United States. DHS served the respondent with a notice to appear alleging that on January 31, 2018, he was convicted of multiple offenses including identity theft, larceny, and possession of stolen property in violation of New York law. DHS charged the respondent with removability under sections 237(a)(2)(A)(ii) and 237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(ii), (iii) (2018), for having been convicted of two or more crimes involving moral turpitude and an aggravated felony, respectively. The respondent filed a motion to terminate, arguing that his convictions were not final for immigration purposes under section 101(a)(48)(A) of the INA, 8 U.S.C. § 1101(a)(48)(A), because a New York court had granted his motion for leave to file a late notice of appeal under section 460.30 of the New York Criminal Procedure Law. The Board’s Decision Pursuant to the Board’s interpretation of section 101(a)(48)(A) of the INA, 8 U.S.C. § 1101(a)(48)(A), as affirmed by the Second Circuit, a conviction does not support removability until it is final, meaning that the right to direct appellate review has been waived or exhausted. See Brathwaite, 3 F.4th at 552–53 (affirming the Board’s conclusion in Matter of J. M. Acosta, 27 I&N Dec. at 431, that in enacting section 101(a)(48)(A), Congress intended to incorporate the finality rule of Matter of Ozkok, 19 I&N Dec. 546, 552 n.7 (BIA 1988)). Determining whether direct appellate review has been waived or exhausted requires analysis under the criminal procedure laws of the convicting State. Despite reversing the rule in Matter of J. M. Acosta, the Second Circuit did not reach whether other limits on finality relating to a request for a late-filed appeal under section 460.30 of the New York Criminal Procedure Law might be imposed. See Brathwaite, 3 F.4th at 553–54. The BIA recognized DHS’ concerns about delays in the New York criminal process and differing outcomes nationally depending on the criminal procedure statutes in different States. However, the Board found that DHS’ proposal is at odds with the court’s explanation of New York’s appellate process set forth in Brathwaite v. Garland. The Second Circuit clearly stated that a motion to file a late notice of appeal under section 460.30, once accepted by the New York court, is deemed the equivalent of a timely-filed direct appeal. Id. The Board found no authority supporting a qualification on the characteristics of a direct appeal as of right. A motion for leave to file a late notice of appeal “must be made with due diligence after the time for the taking of such appeal has expired.” N.Y. Crim. Proc. Law § 460.30(1) (McKinney 2019). A New York court that has granted such a motion has therefore necessarily concluded that the defendant proceeded with due diligence, even if the motion was filed the maximum 1 year and 30 days after the conviction. We cannot substitute our judgment in that regard. In removal proceedings, DHS has the burden of establishing by clear and convincing evidence that a respondent who has been admitted to the United States is deportable. INA § 240(c)(3)(A), 8 U.S.C. § 1229a(c)(3)(A) (2018); 8 C.F.R. § 1240.8(a) (2023); accord Matter of Thomas and Thompson, 27 I&N Dec. 674, 690 (A.G. 2019). Thus, because an appeal accepted under section 460.30 of the New York Criminal Procedure Law is classified as a direct appeal, a respondent with a pending appeal under this section does not have a final conviction for immigration purposes. NOTE The BIA’s analysis applies only to section 460.30 of the New York Criminal Procedure Law based on its classification as a direct appeal of right under controlling precedent. Such an appeal is distinct from discretionary appeals beyond the first appeal of right in New York. See generally N.Y. Crim. Proc. Law §§ 450.90, 460.10(5), 460.20 (McKinney 2023). Full Decision