Convention Against Torture As Relief From Removal Based On Cooperation With Law Enforcement Agencies

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Generally, noncitizens convicted of crimes defined as aggravated felonies under federal immigration law are automatically disqualified from most forms of relief from deportation.  The term “aggravated felony” is a term of art.  While it does include serious crimes like murder; drug or firearms trafficking; and fraud involving losses in excess of $10,000, it also includes very minor crimes like shoplifting or theft offenses if the noncitizen is sentenced to 1 year or more in prison, regardless of whether the full sentence is served. 

Defenses to deportation for noncitizens convicted of an aggravated felony are very limited and often illogical.  But one form of available relief, which makes sense from a humanitarian and law enforcement perspective, as well as good public policy, is the Convention Against Torture (CAT).  What the successful applicant gets is an order preventing deportation.  Applicants for CAT relief have the burden of convincing an immigration judge that they are more likely than not to be tortured if the U.S. government returns them to their native country.  Torture, for the purpose of CAT relief, can be roughly defined as deliberate acts causing severe pain or suffering for an unlawful purpose with the consent or acquiescence of the authorities. 

Noncitizens convicted of aggravated felonies and placed in removal proceedings may need CAT relief if they have cooperated as witnesses or government informants against persons and organizations from their country of origin.  Those persons and organizations can be extremely violent, especially if they are drug traffickers.  If such witnesses and informants are deported back to their native country, they will face the risk of “revenge attacks.”  These attacks may come not only from whomever they testified against, but also from vengeful relatives, friends, and associates of the persons consequently investigated, prosecuted, and deported.  Such attacks tend to rise to the level of torture as defined under CAT.

CAT claims are difficult to win.  Although they involve the filing of an asylum application (Form I-589), the standard of proof for CAT relief and asylum are different.  For CAT relief, the noncitizen must establish that he or she “is more likely than not to be tortured” upon returning to the home country.  For asylum cases, the applicant must demonstrate a “well-founded fear of persecution based on race, religion, nationality, membership of a particular group, or political opinion.”  There is general agreement among immigration practitioners that CAT’s “more likely than not” standard is much tougher than asylum’s “well founded fear” standard.

Few immigration law firms consider accepting such cases, let alone manage to win them.  Within the last three weeks, we used our well-honed strategies to win CAT relief for two clients before two different immigration judges.  Both clients were granted deferral of removal under Article III of the Convention Against Torture.  On both cases, the government’s trial attorneys waived their right to appeal.  In winning these two cases, we persuaded the immigration judges that our clients ably served as government informants and that their physical well-being and lives would be in danger in their native countries.  Also, we facilitated communication between law enforcement and DHS representatives, submitted letters (5K1.1 letters) documenting the assistance our clients rendered to law enforcement, and had our clients testify on the details of their cooperation and the threat of violence that awaits them in their home countries.

CAT relief for noncitizen informants is similar to the S nonimmigrant visa, which is granted to foreign nationals needed as witnesses and informants in the investigation and prosecution of criminal or terrorist organizations.  However, there are marked differences.  One difference is that a seeker of CAT relief files the application in immigration court through his attorney after having already cooperated with a law enforcement agency.  In contrast, the S visa application is filed by a federal, state, or local law enforcement agency with a unit of the U.S. Department of Justice before the noncitizen has begun cooperating.  Another difference is that the S visa is granted solely to obtain the noncitizen’s information and testimony and is for a temporary period that can end with deportation.  A recipient of CAT relief from removal is not subject to such requirements and restrictions.  However, a potentially superior advantage for S visa holders is that they can adjust their status to lawful permanent residency if the information they provide is deemed to have “substantially contributed” to law enforcement efforts.  The adjustment of status application process must however be initiated by the law enforcement agency that originally requested the S visa.