Matter of H-C-R-C-, 28 I&N Dec. 809 (BIA 2024) (1) Applicants bear the burden of establishing their own credibility, and no statute or legal precedent compels an Immigration Judge to conclude that an applicant’s testimony is credible. (2) Rape is sufficiently severe to constitute torture and can never be a lawful sanction under the Convention Against Torture.
President Biden has announced new executive actions to address the situation at the southern border. These actions aim to deter unlawful border crossings and manage the high volume of encounters. The key points are: Barring Asylum for Unlawful Crossings: Migrants who cross the southern border unlawfully will be ineligible for asylum, with exceptions for those who use lawful pathways or seek protection in a country they traveled through. Expedited Removal: The administration will streamline processes to remove individuals without a legal basis to remain in the U.S. more quickly. Increased Resources: Additional personnel and resources will be allocated to support border management efforts. These measures will be implemented when the number of encounters exceeds the government’s capacity to process them promptly, as is currently the case. Presumably this means that the rule will take effect immediately. The President emphasized the importance of securing the border while upholding America’s commitment to providing protection for those fleeing persecution. He also expressed disappointment over the failure of Congress to pass comprehensive immigration reform, which would have addressed these issues more effectively. See the White House’s Fact Sheet. There are two measures being taken to further the goal of stemming the influx of migrants at the southern border. Presidential Proclamation: This temporarily suspends the entry of noncitizens across the southern border. Joint DHS-DOJ Interim Final Rule: This restricts asylum eligibility for those who enter the U.S. irregularly across the southern border, including both the southwest land and southern coastal borders. According to the announcement, these actions aim to: Deter irregular migration: By increasing the consequences for unauthorized entry and restricting asylum eligibility, the administration hopes to discourage individuals from attempting to cross the border illegally. Manage the border: The measures are designed to help manage the high number of encounters at the southern border and ensure a more orderly process. Protect national security: The administration emphasizes the importance of border security for protecting the nation. The administration continues to call on Congress to provide additional resources and support for border security efforts. You can find more information about these measures in the official fact sheet. SEE VIDEO OF ANNOUNCEMENT
May 13, 2024, US Citizenship and Immigration Services announced that the San Francisco Asylum Office will be opening a temporary location in Oakland, California. In announcement made on Monday, May 13, 2024: USCIS’ San Francisco Asylum Office is opening an additional temporary location in Oakland, California. Effective May 15, 2024, asylum applicants under the jurisdiction of the San Francisco Asylum Office may receive an interview notice to appear at the asylum office located in Oakland instead of San Francisco. This additional location increases the San Francisco Asylum Office’s capacity to schedule and conduct affirmative asylum interviews more efficiently. The addresses of the new temporary Oakland-based office within the San Francisco Asylum Office’s jurisdiction are: Physical Address: 1301 Clay StreetOakland, CA 94612 Mailing Address: P.O. Box 77530San Francisco, CA 94107 Opening this additional location will not affect the operations of the current asylum office location in San Francisco. Beginning May 15, 2024, the San Francisco Asylum Office will schedule and conduct affirmative asylum interviews at both locations.
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
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