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Wednesday, July 11, 2012

Stopping Deportation - Difference between CAT and ASYLUM type relief

Admittedly, this is an odd title for a blog post. However, the focus of this entry is tactics -- and it is not just limited to removal proceedings. Specifically, this post will cover the difference between ASYLUM and WITHOLDING relief/submissions and CAT/TPS claims.

The key difference between the two groups is focus. A CAT (Convention Against Torture) and TPS (Temporary Protective Status) claim focuses NOT on the client or alien, but rather on the state of the country from which he/she comes. What are the conditions of the home country? Would the alien likely be tortured or killed if they returned? Is the country listed on the TPS register (State Department)? Whether the fear or torture is reasonable or not, or whether this particular alien is well founded in his or her fear has much less weight.

A brief note about TPS and CAT: TPS is not so much a defense, as it is a request by an alien, already present in the US, to be allowed to stay while conditions in his home country are bad. Determination of which countries qualify for TPS classification is made by the State Department. CAT is a defense application. It is made in front of an immigration judge using form I-589. This requests the judge not deport the alien because, if returned to his home country, the alien would be subject to murder, torture, or other bad acts perpetrated by the government, as a result of his belonging to a protected group. No evidence of prior bad acts against this alien is required in either TPS or CAT (although it does help).

Asylum and withholding are a different kettle of fish. Asylum requests, made before or during the pendency of an immigration trial, require a well-founded fear on the part of the asylum seeker. This fear must have credible roots in the past experience of the alien; his/her fear must stem from prior events, or situations in which the alien was directly involved, or directly threatened. Asylum is "alien"-centric. Additionally, asylum is only available to individuals of good moral conduct. Those with certain types of criminal convictions (called aggravated felonies)are barred from asylum relief.

Withholding is only available during an immigration trial. It is a request to the judge to "withhold" deportation (removal) because of the alien's "reasonable fear" of returning to the alien's home country. This is a lesser standard than the asylum "well founded fear", and is designed to cover a much broader category in immigration defense. An immigrant who is granted "withholding" by a judge may apply for work authorization, but may not adjust status to LPR (green card holder), and may not bring family members with him/her (called derivative status) -- which makes withholding a much lesser step-child to asylum.

Hanover Law can help in determining which relief you qualify for -- before you are detained by ICE OR if you are already in removal proceedings. Do NOT sign any documents from ICE without consulting with us first! If detained, DO NOT agree to any plea until you speak with us. A poor choice of words, or the wrong signature, can cause horrible consequences, and prevent many of the types of rlief discussed herein from applying to you.

We at Hanover Law have been working with just these types of immigration cases for some time. We are sensitive to the frightening and often bewildering nature of the immigration process, and we can help you understand what is happening, and the best steps you need to take.

Call us today to discuss your case. WE CAN HELP. However, the longer you wait, the riskier it becomes when you are finally brought before an immigration judge.

Sean R. Hanover, Esq
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