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Third Circuit Says BIA Misapplied Court’s Precedent When It Determined that Honduran Asylum Seeker Did Not Establish Persecution

The court held that the BIA and the immigration judge had misstated the court’s precedent in three ways in determining that the harm the Honduran petitioner had suffered did not rise to the level of past persecution, including by requiring the petitioner to show severe physical harm.

The Supreme Court ruled that immigrants who fear torture can appeal their deportations in federal appeals court.

In a 7-2 decision on June 1, the Supreme Court ruled against the Trump administration, holding that immigrants slated for deportation have a right to judicial review if their request for relief under the Convention Against Torture (CAT) is denied. The CAT protects foreigners from being deported if they are at risk of being tortured in their home country. In Justice Kavanaugh’s majority opinion, he wrote that Congress could preclude judicial review of CAT orders, but since Congress has not done so, the Supreme Court would not “rewrite the laws.” Justices Thomas and Alito dissented.

Court Denies Asylum for Failure to Meet Nexus, “Particularity” Prong

The First Circuit upheld BIA denials that the petitioner was targeted based on her family relationship and that “single mothers with no male protection who are unable to relocate in El Salvador” are a particular social group. The court also denied the CAT claim, affirming that the petitioner presented no evidence that a Salvadoran official would acquiesce to the petitioner’s torture by gang members.

Mexican who was tortured gets 2nd chance

The Seventh Circuit granted the petition for review and remanded to the Board of Immigration Appeal (BIA), finding that the Immigration Judge and the BIA erred in holding that the Mexican petitioner, who had been tortured by Mexican police at the behest of the Zetas drug cartel because of an unpaid drug debt and had informed against the cartel to the FBI and the DEA, was not entitled to deferral of removal under the Convention Against Torture (CAT).

Transgender granted CATS

The Ninth Circuit granted in part the petition for review, holding that the Board of Immigration Appeals erred when it denied the petitioner, a transgender woman from Mexico, relief under the Convention Against Torture (CAT), because it failed to recognize the difference between gender identity and sexual orientation, and assumed that recent anti-discrimination laws in Mexico have made life safer for transgender individuals, while ignoring significant evidence of violence targeting them. The court remanded for a grant of CAT relief in light of the petitioner’s evidence of past torture and country conditions, which showed a clear probability of future torture with government acquiescence.

No matter what is your crime, we can try to show why it is not categorically a crime of violence

The Ninth Circuit reversed the Board of Immigration Appeals’ denial of the petitioner’s applications for withholding of removal and Convention Against Torture (CAT) relief, holding that the Board erred in finding that the petitioner’s California conviction for voluntary manslaughter constituted a categorical “crime of violence” and a per se “particularly serious crime.” The court also reversed the Board’s denial of the petitioner’s claim for deferral of removal under CAT, and remanded for the Board to consider the aggregate risk of torture arising from the petitioner’s family affiliation together with the risk arising from his status as a criminal deportee.

Denial of CATS upheld even with Tattoos

The Ninth Circuit upheld the Board of Immigration Appeals’ denial of the petitioner’s application for deferral of removal under the Convention Against Torture (CAT), finding that the evidence did not compel the conclusion that the petitioner established it was more likely than not that he would be perceived as a gang member and tortured in El Salvador due to his decorative, non-gang-related tattoos.

I think I’m going to be killed if I go back to my home country. What can I do?

I fear I’m going to be killed if I go back to my home country. What can I do?

I’m going to be beaten if I’m sent back to my country!

Question: I have to escape my country. I don’t know what to do. I want to go to the United States and try to get help. What can I do?

Answer: Assuming you do not have proper entry documents, the border patrol will try to remove you from the United States. However, if a person subject to expedited removal indicates a wish to apply for asylum or expresses a fear of persecution, he or she must be referred to an asylum officer for an interview. Consultation with counsel is allowed only if it will not unduly delay the process. The asylum officer must keep a written record of the “credible fear” interview.
A person found to have a credible fear will be placed in full removal proceedings. A person found to have a credible fear who establishes identity and that he or she is not a flight risk or a danger to the community should, absent additional factors, be paroled and not detained. In those proceedings, if found inadmissible by the IJ, the respondent may apply for asylum as a form of relief from removal. The respondent also may apply for any other form of relief from removal for which he or she may be eligible.

Question: What exactly does ‘credible fear’ mean?

Answer: The term “credible fear” is defined as “a significant possibility, taking into account the credibility of the statements made by you in support of the your claim and such other facts as are known to the officer, that you could establish eligibility for asylum.”
Question: Is it as difficult to get a credible fear determination as it would be to win asylum?
Answer: A “credible fear of persecution” is a lower standard than that required for an actual grant of asylum. For an actual grant of asylum, the applicant must show that he or she has experienced past persecution or that he or she has a well-founded fear of persecution in the future. The “well-founded” fear standard has been determined to mean that a reasonable person in the applicant’s position would fear persecution.

Question: What if I cannot get the asylum officer to agree and rule and there is a credible fear of persecution?

Answer: If the asylum officer finds that the you do not have a credible fear of persecution, you can request that the Immigration Judge review the asylum officer’s decision. The Immigration Judge may review the asylum officer’s decision either in person or telephonically, within seven days, and you would have to be detained during the review. If the Immigration Judge determines that you do have a credible fear of persecution, then you will be placed in regular INA §240 removal proceedings, in which you may file an application for asylum and withholding of removal.

Question: If either the asylum officer or the Immigration Judge through review determine that there is in fact a credible fear of persecution, will I be detained the entire time?
Answer: Yes, you should be eligible to ask for bond. There are valid cases that state that individuals, other than arriving aliens, who initially were placed in expedited removal but who subsequently passed credible fear interviews and were placed in INA §240 removal proceedings are eligible for bond. For example, people who are in expedited removal because they have been in the United States less than 14 days and are caught within 100 miles of a land border are eligible for bond once they have passed a credible fear interview.
Question: What about stowaways?
Answer: They are eligible for a credible fear interview exactly as anyone else would be eligible.
Question: What will I get if the asylum officer agrees that there is a credible fear?
Answer: The asylum officer will issue you a Form I-863, Notice to Referral to Immigration Judge. Before the Immigration Judge, you may only apply for asylum, withholding of removal, or relief under the Convention Against Torture. Technically, you would not be able to apply for other forms of relief other than asylum or withholding.
Question: If I get a denied credible fear determination, will I get a form?
Answer: You will get written notice of the decision and the negative decision is issued on Form I-869, Record of Negative Credible Fear Finding and Request for Review by Immigration Judge. It may be possible at this point, however, to arrange for a credible fear “reinterview.”

Question: Who is entitled to the ‘credible fear interview’?
Answer: Anyone who enters the United States because they possess either false documents or no documents. A false document may include a facially valid document that an individual obtained fraudulently or through willful misrepresentation of a material fact. Expedited removal also applies to individuals seeking transit through the United States at a port of entry.

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