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Withholding of Removal

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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

Respondent With A Pending Appeal of a Criminal Conviction Does Not Have a Criminal Conviction

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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

Applying For U.S. Citizenship

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form n-400 Review the application (Form N-400) instructions Complete the naturalization application, Form N-400 Pay filing fee Form N-400 All applicants must send the following 3 items with their N-400 application: □ Permanent Resident CardA photocopy of both sides of your Permanent Resident Card (formerly known as the Alien Registration Card or “Green Card”). If you have lost the card, submit a photocopy of the receipt of your Form I-90, Application to Replace Permanent ResidentCard; and □ FILING FEE A check or money order for the application fee and the biometric services fee, as stated in the M-479, Current Naturalization Fees, enclosure in the Guide.(Applicants 75 years of age or older are exempted from the biometrics services fee). Write your A-Number on the back of the check or money order. You may also pay using a credit card. There is no additional fee when you do so. The N-400 is the only form that you canpay for by credit card using the G-1450, Authorization for Credit Card Transaction. Check www.uscis.gov for more specificinformation.  your facial features must still be exposed in the photo for purposes of identification. IF YOU RESIDE OUTSIDE THE UNITED STATES □ 2 identical color photographs, with your name and A – Number written lightly in pencil on the back of each photo. For details about the photo requirements, see Part 5 of Form M-476, or our post on immigration photo requirements.  DOCUMENTS TO SUBMIT WITH FORM N-400 AttorneyIf an attorney or accredited representative is acting on your behalf, send:□ A completed original Form G-28, Notice of Entry of Appearance as Attorney or Representative. If Name Is Different Than Your LPR CardIf your current legal name is different from the name on your Permanent Resident Card, send:□ The document(s) that legally changed your name (marriage certificate, divorce decree, or court document). If Apply Based on Marriage to a U.S. CitizenIf you are applying for naturalization on the basis of marriage to a U.S. citizen, send the following 4 items: 1.  Evidence that your spouse has been a U.S     citizen for the last 3 years: Birth certificate (if your spouse never lost citizenship since birth); or Certificate of Naturalization; or Certificate of Citizenship; or The inside of the front cover and signature page of your spouse’s current U.S. passport; or Form FS-240, Report of Birth Abroad of a Citizen of the United States of America; and 2. Your current marriage certificate; and 3. Proof of termination of all prior marriages of your spouse (divorce decree(s), annulment(s), or death certificate(s)); and 4.Documents referring to you and your spouse: Tax returns, bank accounts, leases, mortgages, or birth certificates of children; or Internal Revenue Service (IRS)-certified copies of the income tax forms that you both filed for the past 3 years; or An IRS tax return transcript for the last 3 years. If you have ever been arrested or detained by any law enforcement officer for any reason, and no charges were filed, send: An original official statement by the arresting agency or applicant court confirming that no charges were filed. If you have ever been arrested or detained by any law enforcement officer for any reason, and charges were filed, send:An original or court-certified copy of the complete arrest record and disposition for each incident (dismissal order, convictionrecord or acquittal order). If you have ever been convicted or placed in an alternative sentencing program or rehabilitative program (such as a drugtreatment or community service program), send: An original or court-certified copy of the sentencing record for each incident; and Evidence that you completed your sentence: a. An original or certified copy of your probation or parole record; or b. Evidence that you completed an alternative sentencing program or rehabilitative program. If you have ever had any arrest or conviction vacated, set aside, sealed, expunged or otherwise removed from your record,send:An original or court-certified copy of the court order vacating, setting aside, sealing, expunging or otherwise removing the arrest or conviction, or an original statement from the court that no record exists of your arrest or conviction. NOTE: If you have been arrested or convicted of a crime, you may send any countervailing evidence or evidence in your favor concerning the circumstances of your arrest and/or conviction that you would like U.S. Citizenship and Immigration Services toconsider. If you were married before, send:□ Proof that all earlier marriages ended (divorce decree(s), annulment(s), or death certificates(s)). If you are currently in the U.S. military service and are seeking citizenship based on that service, send:□ A completed original Form N-426, Request for Certification of Military or Naval Service. If you have taken any trip outside the United States that lasted 6 months or more since becoming a Lawful Permanent Resident Send evidence that you (and your family) continued to live, work and/or keep ties to the United States, such as: An IRS tax return “transcript” or an IRS-certified tax return listing tax information for the last 5 years (or for the last 3 years ifyou are applying on the basis of marriage to a U.S. citizen). Rent or mortgage payments and pay stubs.If you have a dependent spouse or child(ren) who do not live with you, send: Any court or government order to provide financial support; and Evidence of your financial support (including evidence that you have complied with any court or government order), such as: a. Cancelled checks; b. Money and receipts; c. A court or agency printout of child support payments; d. Evidence of wage garnishments; e. A letter from the parent or guardian who cares for your child(ren). If you have ever failed to file an income tax return since you became a Lawful Permanent Resident, send: All correspondence with the IRS regarding your failure to file. If you have any Federal, state or local taxes that are overdue, send: A signed agreement from the IRS or state or local tax office showing that you have filed a tax return and arranged to pay thetaxes you owe; and Documentation … Read more

U.S. Immigration Law Acronyms

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Acronyms ACC Assistant Chief Counsel Government attorneys that represent the Department of Homeland Security, ICE at EOIR removal proceedings. A Number A File “A” Number or “A” File is short for alien number or alien file. Every foreign national inside of the United States who has had contact with USCIS, ICE, or CBP will be issued an identifying A number, which will be used by the government as their file number and is how one can track their case or find information about their immigration matters. AF Aggravated felony AOS Adjustment of Status Changing status from a nonimmigrant or no status to that of legal resident. This is the process by which a non-citizen obtains a green card when they are already in the United States. AP Advance Parole Advance parole travel document BIA Board of Immigration Appeals CBP Customs and Border Enforcement A government agency created as part of the Department of Homeland Security Act in 2003. It replaced the legacy INS. CBP is primarily focused on border security and customs inspections at port of entry (like airports) as the name suggests. CBP does operate internally within the United States sometimes in states that are nowhere near any international borders. CBP is a sub agency of DHS. CAT Convention Against Torture Article three if the United Nations Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment is last resort form of a relief for a person who fears they will be in danger if they return to their home country. If the person is unable to obtain Asylum or Withholding of Removal, CAT will not confer any immigration benefit but the U.S. Government will not deport a person to their country of nationality if that person would be in danger there. This not discretionary and it cannot be denied to an alien with criminal convictions. The agency that handles immigration appeals from the EOIR Immigration Court. CIMT Crime involving moral turpitude DACA Deferred Action for Childhood Arrivals Deferred Action for Childhood Arrivals, a program launched in 2012. For more information, go to the Deferred Action for Childhood Arrivals 2017 Announcement page. DED Deferred Enforced Departure (see glossary of terms for more info) DHS Department of Homeland Security The largest government agency in the United States, DHS is massive with an annual budget of hundreds of billions of dollars. It was created in response to the 9/11 terrorist attacks and came into existence in 2003. It includes ICE, CBP, and USCIS, among other agencies that will be less important for the purposes of this wiki. DOJ Department of Justice EAD Employment Authorization Document A document to authorizes a person to legally take employment in the United States, commonly referred to as a work permit. ESTA ESTA Electronic System for Travel Authorization EOIR Executive Office of Immigration Review The immigration court. EWI Entry Without Inspection When a person crosses the border at location not so designated by the attorney general as a port of entry, and enters the United States without being formally inspected by immigration officials or without having a valid visa or travel document. FOIA Freedom of Information Act ICE Immigration & Customs Enforcement ICE is the enforcement branch of DHS. It is the agency that apprehends and prosecutes non-citizens accused of violating United States immigration law. ICE officers are who we contact when a person is apprehended by immigration. They handle the initial arrest and detention of non-citizens and the enforcement of the removal of non-citizens. ICE attorneys represent DHS in removal proceedings. IJ Immigration Judge Immigration Judge LPR Legal Permanent Resident A legal permanent resident is a foreign national who obtained an immigrant visa and has been granted residency in the U.S. allowing them to permanently reside in the United States. Commonly referred to as a “green card” NTA Notice to Appear The NTA is the document that initiates removal proceedings. ICE will serve the noncitizen with the NTA which will contain the factual allegations and charges against them and provide a date, time, and location, for them to appear in Immigration Court. ICE then files that NTA with the Court and removal proceedings are commenced. NOID Notice of Intent to Deny NOIR Notice of Intent to Revoke PD Prosecutorial discretion The legal authority of DHS/ICE to choose whether or not to take action against an individual for committing an offense, in the removal context to pursue their removal from the United States. PSG Particular Social Group Asylum can be granted to a refugee who has been or fears they will be persecuted on the basis of their political beliefs, religion, nationality, race, or particular social group. PSG is a sort of catch-all category for all other basis’s for which a person can be granted asylum. RFE Request for Evidence SIJS Special Immigrant Juvenile Status SIJS stands for “special immigrant juvenile status.” Special immigrant juvenile status is an immigrant visa program that provides a path to legal permanent residency to minors (under 21 and unmarried in NY and most other states) who have been abandoned, neglected, or abused by ONE or both of their parents and reunification with that parent is no longer possible because of said abandonment, neglect, or abuse. TPS Temporary Protective Status USC United States Citizen USCIS US Citizenship & Immigration Services USCIS is the branch of DHS that deals with the granting of immigration benefits. USCIS is not concerned with the enforcement of laws or removal of non-citizens from the USCIS (unless they are violent criminals, terrorists, or individuals with very serious criminal convictions. VAWA Violence Against Women Act

The Convention Against Torture

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WHAT IS THE CONVENTION AGAINST TORTURE (CAT)? You may have seen or heard the term CAT in connection to the asylum process, but what is it? Introduction The first step in seeking asylum protection in the U.S. is to file an I-589 asylum application. On the Form I-589 asylum application there is a little checkbox next to a question asking if you are also seeking WIthholding of Removal or  protection under the Convention Against Torture (CAT).  That is why it is important that you know what it is and how it may help you. If you don’t check that little box on the I-589 then you will waive your right to protection under the additional section of law.  CAT is going to apply to anyone who is seeking asylum or fears returning to their home country for fear of persecution.  In this post I will explain what the Convention Against Torture is, how it came to be, how it may help you, how you apply for it, and who is eligible.  What is CAT? The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly known as the Convention Against Torture (CAT), is an international human rights treaty adopted by the United Nations General Assembly in 1984. The Convention defines torture as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for purposes such as obtaining information, punishment, or intimidation, and which is carried out by a public official or a person acting with official authorization or consent. It also prohibits other forms of cruel, inhuman, or degrading treatment or punishment, which may not reach the threshold of torture but still violate human dignity. The Convention requires state parties to take effective measures to prevent torture and other cruel, inhuman, or degrading treatment or punishment, to investigate and prosecute allegations of torture, and to provide redress and rehabilitation for victims of torture. It also prohibits the use of evidence obtained through torture in legal proceedings. As of February 2023, 169 countries have ratified or acceded to the Convention, making it one of the most widely accepted human rights treaties in the world. How Does CAT Apply to Immigrants Entering the U.S.? The Convention Against Torture applies to all people under the jurisdiction of a state party, regardless of their nationality or immigration status. This means that the United States is obligated to comply with the Convention in its treatment of all individuals within its territory or under its control, including immigrants and refugees. Under the Convention, the United States is prohibited from deporting or extraditing any individual to a country where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. This is known as the principle of non-refoulement. The United States has incorporated this principle into its domestic law through the Convention Against Torture implementing legislation. In addition, the United States has an obligation to ensure that individuals in its custody are not subjected to torture or other forms of cruel, inhuman, or degrading treatment or punishment. This includes immigrants who are detained by the United States government. The United States is required to provide effective safeguards against torture and to investigate and prosecute any allegations of torture or other mistreatment of individuals in its custody. Furthermore, the United States is obligated to provide redress and rehabilitation for victims of torture, including immigrants who have been subjected to torture or other forms of mistreatment. This includes access to medical care, legal assistance, and compensation for any harm suffered as a result of torture or mistreatment. It is important to note that the United States has been criticized by human rights organizations for its treatment of immigrants, particularly with regard to the conditions in detention centers and the use of force by immigration enforcement officials. APPLYING FOR CAT PROTECTION IN REMOVAL PROCEEDINGS Who is Eligible for Protection Under CAT? This is not a detailed an exhaustive guide. This is the basic information. If you are interested or think it may apply to you then you should speak with an immigration attorney or contact me (an immigration attorney) for more information about the convention against torture.  Under the Convention Against Torture (CAT), any person who is in the United States, regardless of their nationality or immigration status, is eligible for protection against torture or other cruel, inhuman, or degrading treatment or punishment. This includes refugees, asylum seekers, and individuals who have entered the country without authorization. The CAT defines torture as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for purposes such as obtaining information or a confession, punishing, intimidating, or coercing someone, or for any other reason 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. Therefore, any individual who has reason to believe that they are at risk of being subjected to torture or other forms of cruel, inhuman, or degrading treatment or punishment in their country of origin, or any other country to which they might be returned, may be eligible for protection under the Convention. In the United States, an individual seeking protection under the CAT may file an application for protection with the Department of Homeland Security (DHS). The application is known as a “CAT application” or a “Convention Against Torture claim.” The applicant must demonstrate that it is more likely than not that he or she would be tortured if returned to their home country or to another country where they are likely to be subjected to torture. If the application is granted, the individual will be protected from deportation or removal to the country where they would face torture.  How Do You Apply for CAT? First, remember what I said earlier. You must check the box on the Form I-589 … Read more