DEFERRAL OF REMOVAL
In this continuation of the
Instruction Series on various forms of “Relief from Removal,” Immigration
Attorney Godfrey Y. Muwonge, Esq. examines the Deportation Defense Remedy known
as Deferral of Removal
In his newest published article, continuing the Instruction Series on “Relief from Removal,” Attorney Godfrey Y. Muwonge examines the Deportation Defense Remedy called "Deferral of Removal." The complete article will appear on the Blog of Mr. Muwonge at https://GodfreyMuwonge.blogspot.com.
On December
10, 1984, the United Nations General Assembly adopted the United Nations
Convention Against Torture (CAT). It is intended to prevent torture, which is
defined—here I paraphrase—infliction of severe pain and/or suffering, whether
physical or mental, and other acts of cruel, inhuman, or degrading treatment or
punishment. The torture need not be by government alone—it can be by private
individuals or organizations, with sanction or acquiescence of the government.
As a signatory to the treaty, the United States has incorporated the CAT into
its regulations governing practice in the Immigration Court where the
immigration judges can grant a non-citizen (known there as the respondent) whom
they have determined to be removable, relief from removal under the CAT.
Godfrey
Muwonge explains that there are two forms of relief the Immigration Judge can
grant a respondent under the CAT. The Immigration Judge can grant (1)
withholding of removal, which is open to those respondents who can prove that
it is more likely than not that they would be subject to torture in the country
to which removal is directed by the Judge, regardless of whether torture would
occur on account of race, nationality, religion, membership in a particular
social group or political opinion, if the respondent is not disqualified by
certain bars to relief; and (2) deferral or removal, which is open to
respondents who can prove that it is more likely than not that they would be
subject to torture in the country to which removal is directed by the Judge,
regardless of race, nationality, religion, membership in a particular social
group, or political opinion, but the respondent is disqualified from
withholding of removal by certain bars such as criminal convictions that
include aggravated felonies (this category of crime does not mean a regular
felony under ordinary criminal law because a misdemeanor under regular criminal
law can be an aggravated felony under immigration law, and one is advised to
consult an experienced immigration attorney for the difference) and terrorism.
A recipient
of deferral of removal has no right, necessarily, to release from custody,
especially if the Department of Homeland Security determines that he or she is
a threat in the his or her community. In addition, he or she, is not entitled
to become a lawful permanent resident (LPR) which leads to citizenship.
Finally, deferral of removal can end abruptly when, upon periodic review, it is
determined by the Immigration Judge in what is known as a de novo (completely
new) hearing that the respondent is no longer in danger of torture. The fact
that a respondent is no longer in danger can be because the government in the
country to which removal was directed has changed and the new government does
not torture its citizens. Also, deferral of removal does not guarantee that the
respondent will remain in the United States. If there is a third country
willing to take him or her, the respondent will be removed to that country.
There are
many ways a respondent can prove that a government tortures its citizens, or
that private entitles do with the acquiescence of government. The following are
some of them:
1. Reports by governmental entities — the
United States Department of State publishes a report on human rights on an
annual basis which contains assessment of whether torture is an issue on a per
country basis, and so do other countries of the world such as the United Kingdom.
2. Reports about torture in particular
countries, by private human rights watch dogs such Amnesty International, Human
Rights Watch and others, which are found at their websites on the internet.
3. Past instances of the respondent’s
suffering of torture.
4. Torture that the respondent’s family
members have suffered, which can be entered into the record through affidavits
of those family members.
5. Torture that persons who have been granted
asylum, withholding of removal, and withholding of removal under the CAT have
suffered in the country to which removal is directed have suffered, which can
be entered into the record through affidavits.
6. Expert opinions by college professors
specializing in studies of particular countries, and others with particular
knowledge of countries in which torture occurs.
There are
countries in which it is presumed that a respondent will be subjected to
torture. For instance, countries in which a criminal deportee is subject to
imprisonment upon return are deemed countries in which respondents will suffer
torture. One court has held that an HIV/AIDS sufferer whose removal was
directed to Haiti would face torture there and, therefore, deserved relief
because that respondent would die quickly upon return because the respondent
would be imprisoned upon return. Another respondent was able to show a court
that return to Nigeria would result in incarceration under that country’s
mandatory detention of citizens deported as a result of criminal conviction,
and the respondent won deferral of removal on that basis.
Mr. Muwonge
points out that this is a comment on the law and not legal advice. If the
reader seeks legal advice on deferral of removal, the reader should consult
with an experienced immigration attorney on the subject. - The complete article
will appear on the Blog of Mr. Muwonge at https://GodfreyMuwonge.blogspot.com.
*** Godfrey
Y. Muwonge is an immigration attorney in Milwaukee, Wisconsin. Education:
Marquette University Law School, Juris Doctor
(1997). Author of “Immigration Reform: We Can Do It, If We Apply Our Founders'
True Ideals, Revised Edition” (Univ. Press of America, 2010), which was
selected as one of top-10 Books that Drive the Debate (2009) by U.S. Chamber of
Commerce's National Chamber Foundation. See https://www.amazon.com/Immigration-Reform-Apply-Founders-Ideals-ebook/dp/B00D79W838
References
Godfrey Muwonge is an attorney in Milwaukee, Wisconsin. Author of “Immigration Reform: We Can Do It, If We Apply Our Founders' True Ideals, Revised Edition” (Univ. Press of America, 2010), which was selected as one of top-10 Books that Drive the Debate (2009) by U.S. Chamber of Commerce's National Chamber Foundation. See https://www.amazon.com/Immigration-Reform-Apply-Founders-Ideals-ebook/dp/B00D79W838
