If you are accused of a crime in the United States, you want to be concerned and move fast to avoid a conviction, which can have severe consequences. Immigrants want to be especially concerned, as a conviction would subject them to more severe consequences. Among the consequences you can face as an immigrant convicted of an offense are deportation and inadmissibility to the United States.
The good news is that there are various ways to delay or prevent deportation from the United States if you do not wish to return to your country. If you face possible deportation, know that there could still be options at your disposal to prevent that from happening, including deferral of removal. Your immigration law attorney can help you navigate this relief option and others for which you are eligible. This blog explains what deferral of removal is, its eligibility, and how it can help you avoid deportation from the United States.
Gaining Insight Into CAT
The Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) is a U.N. international human rights treaty. It aims to avert torture and other inhumane or barbaric acts worldwide.
Article 3 of the CAT provides that treaty parties establish certain measures to stop acts of inhumanity or torture from happening in their countries. It additionally forbids treaty member countries from sending individuals to another nation where there is an actual chance that they would be subject to torture. It provides that any member of the treaty will not extradite, return, or expel an individual to another nation in which there is reason to believe that they would face the danger of being subject to torture.
The U.S. signed the CAT on Apr. 18, 1988. The same year, Congress passed the FARRA (Foreign Affairs Reform and Restructuring Act) to implement Article 3 of the CAT.
CAT offers crucial protections to people who are at risk of being subjected to inhumane and barbaric acts in particular countries. It also allows particular individuals to stay in the United States and postpone or suspend deportation.
CAT Protection
As mentioned, CAT restricts immigrants from deportation to a nation where they will more likely than not be subject to torture. Applying for this kind of protection that CAT provides is an excellent option for particularly qualifying immigrants who live in the United States and face potential deportation.
CAT offers two kinds of protection against deportation. These are the deferral of removal for immigrants with the right to protection, who would face compulsory denial of withholding and withholding of removal for immigrants not disqualified under FARRA for having a conviction of a severe offense or an aggravated felony whose imprisonment term is a minimum of two years.
Deferral of Removal
Under the deferral of removal protection, you would not be deported to your country of origin, where you would likely be subject to torture, but you could be held in immigration detention if applicable. This kind of protection is granted to people who are considered a security risk in the United States. Usually, an individual is considered a security risk because of their past severe convictions or involvement in terrorist acts. You could also be considered a security risk if you have been involved in the persecution of other people before.
Deferral of removal is comparable to withholding of deportation and asylum, as we shall see later, with some key differences. These differences include the following:
- Compared to asylum, protection under CAT offers fewer advantages. Essentially, it will not qualify a person for naturalization to become a United States citizen or green card (lawful permanent residence), and
- Conviction of an especially severe crime, like an aggravated felony, will not render an immigrant unqualified for protection under CAT. Protection under CAT is compulsory for any qualifying person.
Being granted deferral of removal is challenging, but it could be your only option. For example, if you are prohibited from requesting asylum or are not eligible for the withholding of removal relief because of something such as having prior convictions, applying for deferral of removal could be the only available option.
Applying for Deferral of Removal
You do not have to file any official application to be considered to have applied for deferral of removal. If you wish to apply, you can do so simultaneously as you apply for withholding of deportation or asylum using the same application form (I-589). You can complete your application by:
- Ticking the correct boxes on your application form and
- Accompanying the application with all the required supporting documents and information
You could also make a CAT protection request later by adding a supplemental application to your asylum application. Full instructions about applying for protection under CAT are available on the USCIS (United States Citizenship and Immigration Services) website.
Unlike applying for asylum, no deadline exists by which you must request CAT protection. You could request protection under CAT even once a final directive of removal or deportation has been granted.
Meaning of Torture
For CAT protection purposes, torture is described as any action by which serious suffering or pain, whether mental or physical, is deliberately caused to an individual for various reasons, and the suffering or pain is inflicted with the acquiescence or consent of or at the instigation of a public officer or other party acting in an official capacity. These reasons include things like:
- Acquiring from them or someone else a confession or information,
- Punishing them for something they or someone else has done or is alleged to have done
- Coercing or intimidating them or a third party
- For whatever reason, contingent on any kind of discrimination
To be considered torture, an act must rise to the level of inhuman or brutal treatment. Lesser kinds of degrading, inhuman, or cruel punishment or treatment do not constitute torture. Torture, for example, does not involve suffering or pain arising solely from, incidental to, or inherent in legal sanctions, including capital punishment.
Mental Suffering as Torture
For you to claim protection under CAT contingent on mental suffering or pain, the suffering needs to include prolonged psychological pain resulting from or caused by:
- The threatened or intentional infliction of serious physical suffering or pain
- The application, administration, or threatened application or administration of mind-changing substances or procedures meant to acutely disrupt the personality or senses.
- Threats of immediate death
- Threatens that someone else will imminently face death, experience severe physical suffering or pain, or the application or administration of mind-changing substances or procedures meant to disrupt acutely personality or senses
Acts that may constitute torture per CAT provisions include rape, severe beatings, coerced ingestion of poison or drugs, electric shock, starvation for water deprivation, or recurrent threats of these acts.
Other Exemptions To What Qualifies as Torture
To be considered torture, an action must be particularly meant to cause severe mental or physical suffering or pain. An action that leads to unintended or unexpected severe suffering and pain does not constitute torture. Also, the action must be specifically directed against an individual in the defendant's physical control or custody.
Failure to comply with applicable lawful procedural standards is not torture by itself. However, if a public officer becomes aware of that action in advance and breaches their legal duty to step in and stop it, it could be considered torture.
Proving You Would Face Torture
To be granted protection under CAT, you must demonstrate with a preponderance of the evidence that you would be subject to torture if deported back to your home. A preponderance of the evidence entails you showing that it is more likely than not that you would face torture. You can prove this fact by submitting objective evidence, like doctor's reports, news reports, and formal country reports demonstrating past torture incidences. The more particular the evidence is, the better it will be for you. The evidence must establish the following:
- The type or types of past torture you have been subject to in your home country (if any)
- The type or types of torture your close friends or family have faced (if any exist)
- How the government of your home country or a clique the government cannot control has subjected other similarly located people to torture
- Any other thing that would prove the kind of torture you are likely to be subject to if you are deported back to your home country.
Note that prior torture incidents are only one element the judge considers. Thus, it will not automatically make you eligible for protection under CAT. You must prove that you will more likely than not be subject to torture in the days to come if deported back to your country.
Deferral of Removal Period
An immigration court judge reviews CAT protection periodically. They could terminate it if they determine you no longer face possible torture in your country of origin or if you request that the protection be terminated.
Deferral of Removal Limitations
CAT protection provides fewer advantages than asylum. The primary benefit of this protection is that restrictions on withholding of removal and asylum, like criminal liability for a severe offense, do not bar CAT relief. Nonetheless, CAT protection does not grant any permanent lawful status in the United States. It will not even warrant detention or jail release.
Additionally, it does not stop an immigrant from being deported by the United States government to a safer third nation if one has agreed to take in the immigrant. Lastly, CAT protection does not cover family members, even though children and spouses may be eligible under their independent asylum applications.
Withholding of Removal
Withholding of deportation prevents an immigrant’s deportation to a nation where they are more likely than not to face torture. However, unlike deferral of removal, if your request for withholding of removal is granted, your protection status could later be canceled if the immigration court reopens your case and the government proves that you will no longer likely face torture in your home country after deportation. Also, there is the likelihood that you could still be deported from the United States but to another third country, where you would not be subject to torture, and you have the right to live there.
To be eligible for withholding of deportation, you must prove with a preponderance of the evidence that your freedom or life would be under threat if you were deported back to your country of origin due to political opinion, religion, race, membership in a given social group, or nationality.
Asylum
The primary objective of the U.S. asylum statute is to protect refugees who have fled persecution. The U.S. attorney general might grant an asylum request to anyone eligible to be a refugee.
According to the INA (Immigration and Nationality Act), a refugee is anyone outside their country of nationality or, if they do not have a nationality, who is outside any nation in which they last habitually resided, who is unwilling or unable to go back, and who is unwilling or unable to avail themselves of that country's protection due to persecution or justifiable fear of persecution due to race, religion, membership in a given social group, political opinion, or nationality.
You may be considered a refugee either because you have been subject to persecution in the past or because you have a justifiable fear of future persecution.
More particularly, you can prove prior persecution due to a protected ground. After you have proven past persecution, fear of future persecution will be presumed. It will then be up to your country to prove that it is more likely than not that circumstances have changed to the extent that you do not need to have a fear of persecution or you could avoid persecution by moving to a different part of your country. You may also become eligible for asylum.
Deferral or Removal vs. Asylum vs. Withholding of Removal
The standard of proof under withholding deportation is more strict than the justifiable fear standard required under asylum law. If you fail to meet the less stringent standard under asylum requirements, you automatically fail to meet the more strict standard under withholding deportation.
However, if you are denied asylum at the attorney general's discretion, you remain qualified for withholding of removal. Unlike asylum, withholding deportation is non-discretionary. The judge or attorney general cannot deport an immigrant to a nation where their freedom or life would be under threat due to religion, political opinion, et cetera.
Deferral of removal is a much more temporary and tenuous type of relief than the withholding of deportation or asylum. Under deferral of removal regulations, the DHS (Department of Homeland Security) can bring a motion to terminate the order of deferral of removal.
This motion is usually not governed by the normal rules for motions to reopen cases, and the judge shall grant it if there is relevant evidence of the likelihood that you would not face torture in the nation to which deportation was deferred and which was not submitted at the past proceedings. The rules do not obligate the DHS or government to prove the evidence is newly discovered or was not available at previous proceedings. You must then respond to this motion by presenting supplementary details showing you continue to face the risk of torture after deportation.
The immigration court judge will review the arguments and evidence and decide afresh whether you would more likely than not face torture upon returning to your country of origin. You will still bear the burden of proof in the fresh hearing despite being already granted the deferral of a removal request under the CAT. If you fail to meet the burden of proof, deferral will be terminated, and you can then be deported.
If you have been granted deferral of removal, you can request an employment authorization document from USCIS (United States Citizenship and Immigration Services). Lastly, you cannot travel to another country and re-enter the U.S. later.
Other Relief Options Apart From CAT
Apart from the withholding of removal or asylum, eligible immigrants may qualify for protection under the following initiatives:
- A “T” visa. This visa is for human trafficking victims
- The VAWA (Violence Against Women Act), which permits battered noncitizens to acquire temporary visas
- A “U” visa. This visa is for domestic abuse victims or victims of severe offenses in the U.S.
Contact a Knowledgeable Immigration Attorney Near Me
If you seek to remain in the United States after an immigration court has ordered your deportation, we at California Immigration Attorney are here to assist you. We can assist you with a deferral of removal petitions so you do not have to be deported.
If you are ineligible for deferral of removal, we will look into other relief options for which you qualify, including asylum and withholding of removal. We will then strive to obtain one for you. Additionally, we may successfully assist you in having the immigration court reconsider your case if your application has been denied. Call us today at 424-789-8809 for a cost-free consultation.