James C. Tai, Attorney at Law

Site menu

HomeAttorney ProfileImmigration BlogPro Bono ServicesEspañolDirections to Immigration CourtsContact Us

Immigration Court -- Deferral of Removal under Convention of Torture

12/22/2012

2 Comments

 
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. 



2 Comments
Asylum lawyer link
10/14/2013 04:30:50 pm

I really really thanks for author of this blog whose shared nice and informative detail on this blog related to attorney and immigration law

Reply
Emo Oklahoma link
3/26/2021 03:00:46 am

Thank you ffor sharing

Reply



Leave a Reply.

    Author

    James C. Tai, Esq.

    View James C. Tai's profile on LinkedIn
    Picture

    Click Here for Library of Immigration Resources


    Categories

    All
    42a Cancellation
    Affirmative Asylum
    Against Torture
    Aggravated Felony
    Alien Smuggling
    Announcement
    Arrested
    Asylum
    Asylum 1 Year Rule
    Attorney
    Background Check
    Bond
    Bond Determination
    Bondsman
    Cancellation Of Removal
    Candor
    Charged
    Child Pornography
    CIMT
    Citizenhip
    Civil Rights
    Controlled Substance
    Convention
    Convention Against Torture
    Crime Involving Moral Turpitude
    Crime Of Violence
    Criminal
    Criminal History
    Criminal History
    Defensive Asylum
    Deferral Of Removal
    Denial
    Deportation
    Detained
    Detention
    Divorce
    Failure To Disclose
    Filing Petitions
    Firearms
    Florida
    Good Faith Marriage
    Good Moral Character
    Honesty
    I 751
    I-751
    Ice
    ICE Custody
    Immigrants
    Immigration
    Immigration Bond
    Immigration Court
    Immigration Court
    Immigration Judge
    Immigration Judge
    INA 216 (c) (4) (B) Waiver
    Krome
    Lgbt
    Lpr Cancellation
    Mandatory Detention
    Mandatory Detention
    Miami
    Money Laudering
    N-336
    N-600
    Naturalization
    Notice Of Custody Determintation
    Offices
    Particularly Serious Crime
    Persecution
    Petition Filing
    Political Opinion
    Removal
    Removal Proceedings
    Remove Conditions
    Sentenced
    Sexual Orientation
    Stop Time Rule
    Theft
    Trafficking
    Uscis
    Uscis Denial
    USCIS Referal
    Vietnam
    Withholding Of Removal

Powered by Create your own unique website with customizable templates.