James C. Tai, Attorney at Law

When an application for asylum (I-589) is filed with USCIS, it is considered an affirmative asylum application. USCIS can approve the asylum application or refer it to an immigration judge in immigration court. A referral of an asylum application is not a denial of the asylum application. USCIS has referred it to the immigration judge because there may be some outstanding factual or legal issues, for which the immigration judge needs to rule on.

The applicant will receive an official notice from USCIS referring him/her to the immigration judge. The applicant will then later receive a Notice to Appear (immigration court charging document) and then a Notice of Hearing directing the applicant to appear in immigration court on a specific date.

Once in immigration court, the immigration judge conducts a “de novo” hearing of the case. This means that the judge conducts a new hearing and issues a decision that is independent of the decision made by USCIS. Additional and supplemental documents can be filed with the immigration court in support of the asylum application.

An individual hearing will then be scheduled by the immigration judge. At the individual hearing, the applicant will testify on his/her own behalf, and present any additional evidence or witnesses in support of his/her application. The applicant may be cross-examined by the DHS trial attorney and/or by the immigration judge. At the conclusion of the individual hearing, the immigration judge will render a decision as to the grant or denial of asylum. The immigration judge will also consider and rule on whether the applicant should be granted withholding of removal under INA 241(b)(3), withholding of removal under CAT  (Convention against Torture), and deferral of removal under CAT. A denial of asylum, withholding of removal under INA 241(b)(3), and/or withholding/deferral of removal under CAT, by the immigration judge can be appealed to the BIA (Board of Immigration Appeals) within 30 days of the immigration judge’s decision.        

1. Deferral Under the Convention Against Torture (CAT) granted to detained individual from Romania who suffers from sever mental illnesses. 

2. Immigration Judge held that a conviction for Trafficking in Amphetamine in violation of Fla. Stat. §893.135(1)(f)(1)(a) is not an aggravated felony under INA §101(a) (43)(B): illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18). 

3. Immigration Judge held that possession of cocaine with intent to purchase in violation of Fla. Stat. §893.13(1)(a)(1990) is not an aggravated felony under INA §101(a) (43)(B): illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18). 

4. Immigration Judge terminated proceedings holding that Fla. Stat. 540.11(3)(a)(3)(Unauthorized Sale of Sound Articles) is not a crime involving moral turpitude.   

When Immigration Detains You or a Family Member. A very well made video by Illinois Legal Aid concerning common questions for individuals and family members being detained by ICE (Immigration Customs Enforcement). 

Immigration regulations create two separate types of protection under Convention Against Torture (CAT). The first type of protection is Withholding of Removal under CAT. Withholding under CAT prohibits the return of an individual to her home country. It can only be terminated if the individual’s case is reopened and the DHS establishes that he/she is no longer likely to be tortured in his/her home country.

The second type of protection is called 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 subject to torture, but who are ineligible for withholding of removal, such as persecutors, terrorists, and certain criminals. It 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 his/her home country. Additionally, an individual granted deferral of removal under CAT, may be detained by the DHS if he/she is deemed to be a threat to the community.

If a Respondent has been convicted of "particularly serious crime" he/she is barred from Withholding of Removal under CAT. An aggravated felony automatically constitutes a particularly serious crime if the sentence required at least 5 years of imprisonment. 

While a Respondent's conviction for a particularly serious crime makes him/her ineligible for Withholding of Removal under CAT, he/she may still be eligible for Deferral of Removal CAT. See 8 C.F.R. 1208.17(a). 

To be eligible for Deferral of Removal under the Convention Against Torture, a Respondent must show that it is "more likely than not" that he/she will be tortured if removed. See Najjar v. Ashcroft 257 F. 3d 1262, 1303 (11th Cir. 2001). The burden of proof is higher than the burden for asylum. A Respondent must show that it is more likely than not that he/she will be singled out for torture "inflicted by or at the instigation or or with the consent or acquiescence of a public official or other person acting in an official capacity. 

Torture is defined as the intentional infliction of severe physical or mental pain or suffering. 8 C.F.R. 1208.18(a)(1). Torture is an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment. It does not include pain or suffering arising only from lawful sanctions, unless such sanctions defeat the purpose of the Convention Against Torture. A Respondent is not required to demonstrate that he/she would be tortured on account of a particular belief or immutable characteristic. See Matter of G-A-, 23 I&N Dec. at 367.