Under the CAT, countries that are party to the treaty are required to take measures to prevent torture and other forms of mistreatment, and to provide remedies and compensation for victims. The treaty defines torture as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for a specific purpose, such as obtaining information or a confession.
One of the key provisions of the CAT is the principle of non-refoulement, which prohibits countries from returning individuals to a country where they are at risk of being tortured or subjected to other forms of cruel, inhuman, or degrading treatment or punishment. This principle applies to all individuals, regardless of their immigration status or whether they have committed a crime.
Individuals who have been subjected to torture or other forms of mistreatment in their home country may be eligible for protection under the CAT if they can demonstrate a well-founded fear of being subjected to further torture or mistreatment if they are returned to their home country.
In the United States, individuals who fear persecution or torture in their home country can seek protection under the Convention Against Torture as a form of relief from removal or deportation. If the government determines that the individual would likely be subjected to torture if they were returned to their home country, the individual may be eligible for protection under the CAT and allowed to remain in the United States.
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]]>Frequently asked Questions
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What is the Convention Against Torture (CAT)?
The Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) is an international treaty that aims to prevent and prohibit torture and other cruel, inhuman, or degrading treatment or punishment worldwide.
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How does the CAT relate to removal proceedings in the United States?
In the United States, the CAT is incorporated into immigration law. It provides protection for individuals who may face a risk of torture if they are returned to their home country.
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Who is eligible for protection under the CAT in removal proceedings?
Individuals who can demonstrate a substantial likelihood of being tortured if returned to their home country are eligible for protection under the CAT.
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How do I apply for protection under the CAT in removal proceedings?
You can apply for CAT protection by submitting an application to the immigration court or the Department of Homeland Security (DHS) during your removal proceedings. It's recommended to consult with an immigration attorney to assist with the application process.
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What is the burden of proof for CAT protection?
To be granted protection under the CAT, you must demonstrate that it is more likely than not that you would be tortured if returned to your home country. This is a higher standard than the "well-founded fear of persecution" standard for asylum.
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What factors are considered in CAT protection cases?
Factors considered may include evidence of past torture, specific threats or incidents, country conditions, and any medical or psychological evaluations related to torture.
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Can CAT protection be granted in addition to other forms of relief, such as asylum or withholding of removal?
Yes, it is possible to be granted CAT protection in addition to other forms of relief. Each form of relief has its own legal criteria and standards of proof.
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What happens if CAT protection is granted?
If CAT protection is granted, you will not be removed to the country where you would face a risk of torture. However, you may not receive the same benefits and rights as someone granted asylum.
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Is CAT protection permanent?
CAT protection does not provide a pathway to permanent residency or citizenship. It is a protection against removal to a country where you would face a risk of torture.
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Can CAT protection be revoked?
CAT protection can be revoked if there is a change in circumstances or if it is found that the protected individual no longer meets the eligibility criteria.
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]]>The post Withholding of Removal in Removal Proceedings appeared first on Kraus Law Corporation.
]]>Under U.S. immigration law, individuals who can establish a well-founded fear of persecution based on their race, religion, nationality, political opinion, or membership in a particular social group may be eligible for asylum. However, in some cases, an individual may not meet the strict definition of a refugee as defined by U.S. law, but may still face a risk of persecution or torture if they are removed to their home country.
In these cases, an individual may be eligible for withholding of removal, which provides protection from removal to a country where they would be at risk of persecution or torture. Unlike asylum, withholding of removal does not provide a path to permanent residence in the United States or a pathway to citizenship.
To be eligible for withholding of removal, an individual must demonstrate that it is more likely than not that they would be persecuted or tortured if removed to their home country. This is a higher standard than the "well-founded fear" standard required for asylum. Additionally, individuals who have committed certain crimes or pose a threat to national security may be ineligible for withholding of removal.
If withholding of removal is granted, the individual will be allowed to remain in the United States without fear of being removed to their home country. However, the individual must remain vigilant, as withholding of removal does not provide permanent protection, and the U.S. government may seek to remove the individual if conditions in their home country improve or if the individual is found to have committed certain crimes or poses a threat to national security.
Frequently asked Questions
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What is Withholding of Removal?
Withholding of Removal is a form of protection from deportation or removal for individuals who can demonstrate a clear probability that they would face persecution or harm if returned to their home country.
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How does Withholding of Removal differ from Asylum?
While both Withholding of Removal and Asylum provide protection from persecution, there are key differences. Withholding of Removal has a higher burden of proof, requiring the applicant to show a clear probability of persecution, whereas asylum requires a well-founded fear. Additionally, Withholding of Removal does not provide a pathway to permanent residency or citizenship.
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Who is eligible for Withholding of Removal?
To be eligible for Withholding of Removal, an individual must demonstrate that it is more likely than not that they would face persecution on account of race, religion, nationality, membership in a particular social group, or political opinion if returned to their home country.
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How do I apply for Withholding of Removal in removal proceedings?
You can apply for Withholding of Removal by submitting an application to the immigration court during your removal proceedings. It's advisable to seek legal representation from an immigration attorney to assist with the application process.
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What is the burden of proof for Withholding of Removal?
The burden of proof for Withholding of Removal is higher than for asylum. You must demonstrate a clear probability (more likely than not) that you would face persecution if returned to your home country.
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Can I apply for Withholding of Removal in addition to other forms of relief?
Yes, you can apply for Withholding of Removal in addition to other forms of relief, such as asylum or protection under the Convention Against Torture (CAT). However, you can only be granted one form of relief.
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What happens if Withholding of Removal is granted?
If Withholding of Removal is granted, you will not be removed to the country where you would face persecution. However, it does not provide a pathway to permanent residency or citizenship.
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Is Withholding of Removal permanent?
Withholding of Removal is not permanent, but it can be renewed indefinitely as long as conditions in your home country remain unchanged.
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Can Withholding of Removal be revoked?
Withholding of Removal can be revoked if it is determined that conditions in your home country have changed to the point where you would no longer face persecution.
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Can I travel outside the United States if I have Withholding of Removal?
Withholding of Removal does not provide the same travel benefits as lawful permanent residency. Leaving the United States may result in the termination of your Withholding of Removal.
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]]>The post Political Asylum appeared first on Kraus Law Corporation.
]]>Political asylum is a form of protection that allows individuals who fear persecution in their home country to remain in the United States and obtain legal status. To be eligible for political asylum, an individual must demonstrate that they have a well-founded fear of persecution based on their race, religion, nationality, political opinion, or membership in a particular social group.
To apply for political asylum in the United States, an individual must file Form I-589, Application for Asylum and for Withholding of Removal, with U.S. Citizenship and Immigration Services (USCIS) within one year of their arrival in the United States. The individual will also need to attend an interview with an asylum officer, during which they will provide information about their fear of persecution and the circumstances that led them to flee their home country.
If the asylum officer approves the asylum application, the individual will be granted asylum status, which allows them to remain in the United States and work legally. After one year of asylum status, the individual may be eligible to apply for permanent residence (a green card).
Frequently asked Questions
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What is Political Asylum?
Political asylum is a form of protection granted to individuals who have suffered persecution or have a well-founded fear of persecution in their home country due to race, religion, nationality, membership in a particular social group, or political opinion.
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Who is Eligible for Political Asylum in the USA?
To be eligible for political asylum, you must demonstrate that you have a credible fear of persecution based on one of the protected grounds: race, religion, nationality, membership in a particular social group, or political opinion.
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How do I Apply for Political Asylum?
You can apply for political asylum by submitting Form I-589, Application for Asylum and for Withholding of Removal, to the U.S. Citizenship and Immigration Services (USCIS) or, if in removal proceedings, to the immigration court.
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Can I Include My Dependents in My Asylum Application?
Yes, you can include your spouse and children who are unmarried and under 21 years old in your asylum application, as long as they are physically present in the United States.
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Can I Apply for Political Asylum at a Port of Entry?
Yes, you can apply for political asylum at a U.S. port of entry when you arrive in the United States. This is known as an affirmative asylum application.
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What is Defensive Asylum?
Defensive asylum is when you request asylum as a defense against removal or deportation in immigration court. This happens if you are already in removal proceedings.
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What is the Deadline for Filing for Asylum?
You must file your asylum application within one year of your arrival in the United States, unless you can demonstrate changed circumstances or extraordinary circumstances that prevented you from applying earlier.
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Can I Work in the United States While My Asylum Case is Pending?
After 150 days from the date you filed your asylum application, you may be eligible to apply for work authorization. However, this is subject to USCIS processing times.
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What Happens if My Asylum Application is Approved?
If your asylum application is approved, you will be granted asylum status, which allows you to live and work in the United States. After one year, you can apply for lawful permanent residency (green card).
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What Happens if My Asylum Application is Denied?
If your asylum application is denied, you may be subject to removal from the United States. You have the right to appeal the decision.
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]]>The post Travel Documents for TPS and DACA holders appeared first on Kraus Law Corporation.
]]>The I-131 travel document is typically required for individuals who are in the United States but are not permanent residents (green card holders) and who plan to travel outside the U.S. and return.
To apply for a travel document, individuals must file Form I-131 with U.S. Citizenship and Immigration Services (USCIS) and pay the required fees. The processing time for the application can vary, but it typically takes several months.
Frequently asked Questions
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What is a Travel Document?
A travel document is an official document issued by the U.S. government that allows certain non-citizens to travel internationally and re-enter the United States.
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Can TPS Holders and DACA Recipients Apply for Travel Documents?
Yes, both TPS holders and DACA recipients can apply for travel documents that allow them to temporarily leave the United States for specific purposes.
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What is the Travel Document for TPS Holders called?
For TPS holders, the travel document is called an Advance Parole Document.
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What is the Travel Document for DACA Recipients called?
For DACA recipients, the travel document is also called an Advance Parole Document.
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What is the Purpose of an Advance Parole Document?
The Advance Parole Document allows TPS holders and DACA recipients to travel internationally for specific purposes, such as humanitarian, educational, or employment-related reasons.
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Can TPS Holders and DACA Recipients Travel to Any Country with an Advance Parole Document?
No, travel destinations must be declared in the application, and travel is generally limited to countries that are not the individual's country of nationality or the country where they face persecution.
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Can TPS Holders and DACA Recipients Apply for Advance Parole Online?
As of September 2021, the process for applying for Advance Parole involved submitting a paper application to USCIS. However, procedures may change, so it's crucial to check the official USCIS website for the most current instructions.
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Is Travel with an Advance Parole Document Guaranteed?
No, even if you are granted an Advance Parole Document, it does not guarantee re-entry into the United States. U.S. Customs and Border Protection (CBP) officers will determine your eligibility for re-entry at the port of entry.
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Can TPS Holders and DACA Recipients Apply for a Re-entry Permit Instead of an Advance Parole Document?
No, TPS holders and DACA recipients are not eligible for a traditional Re-entry Permit. They can only apply for an Advance Parole Document.
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Can TPS Holders and DACA Recipients Apply for a Refugee Travel Document?
No, TPS holders and DACA recipients are not eligible for a Refugee Travel Document. They can only apply for an Advance Parole Document.
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]]>The post Temporary Protected Status appeared first on Kraus Law Corporation.
]]>To qualify for TPS, an individual must be a national of a designated country, have been physically present in the United States since the date that their country was designated for TPS, and meet other eligibility requirements such as passing background checks and not having certain criminal convictions.
Once granted TPS, individuals are protected from deportation and are authorized to work in the United States for a specific period of time, which is typically between 6 and 18 months. TPS beneficiaries may also be eligible to apply for travel authorization and may be able to renew their TPS status if the designation for their country is extended.
It's important to note that TPS is a temporary benefit and does not provide a pathway to permanent residency or citizenship. Additionally, TPS designations can be terminated by the U.S. government at any time, and individuals who have TPS status may need to adjust their immigration status if they wish to remain in the United States after their TPS status expires.
Frequently asked Questions
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What is Temporary Protected Status (TPS)?
Temporary Protected Status (TPS) is a temporary immigration status granted to eligible individuals from certain countries that have experienced natural disasters, armed conflicts, or other extraordinary conditions.
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Who is Eligible for TPS?
Eligibility for TPS is determined by the U.S. government based on the conditions in a specific country. Generally, individuals from countries designated for TPS must meet certain criteria, such as being continuously present in the U.S. since the TPS designation date.
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How Does a Country Become Eligible for TPS?
The U.S. Secretary of Homeland Security has the authority to designate a country for TPS based on specific criteria, including ongoing armed conflict, environmental disasters, epidemics, or other extraordinary and temporary conditions.
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How Long Does TPS Last?
The designation of TPS for a country is temporary and can be extended or terminated depending on the situation in that country. TPS beneficiaries are granted protection from deportation and work authorization during the designated period.
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Can TPS Beneficiaries Travel Outside the U.S.?
TPS beneficiaries can apply for travel authorization, known as Advance Parole, which allows them to temporarily travel outside the U.S. However, travel is generally limited to certain circumstances, and re-entry is not guaranteed.
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Can TPS Beneficiaries Apply for Permanent Residency (Green Card)?
TPS does not provide a direct pathway to permanent residency. However, individuals with TPS may be eligible to apply for other forms of relief or may be able to adjust their status if they have an eligible family relationship or employer sponsorship.
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Can TPS Be Extended for a Country?
Yes, TPS designations can be extended if conditions in the designated country warrant it. The U.S. government will assess the situation and make a determination on whether to extend or terminate TPS for a particular country.
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Can TPS Beneficiaries Work in the U.S.?
Yes, TPS beneficiaries are eligible for work authorization while their TPS status is valid.
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What Happens if TPS Expires for a Country?
When TPS expires for a specific country, beneficiaries revert to their previous immigration status, which may mean they are subject to deportation if they do not have another legal basis to stay in the U.S.
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Can TPS Beneficiaries Be Deported While Their Status is Valid?
No, as long as a person's TPS status is valid, they are protected from deportation. However, it's crucial to follow all TPS-related requirements to maintain valid status.
The post Temporary Protected Status appeared first on Kraus Law Corporation.
]]>The post DACA – Deferred Action for Childhood Arrivals appeared first on Kraus Law Corporation.
]]>To be eligible for DACA, individuals must have arrived in the United States before the age of 16, have continuously resided in the U.S. for at least five years, and have been under the age of 31 as of June 15, 2012. They must also have completed high school or be enrolled in school, and have no criminal record.
Successful DACA applicants are granted a two-year period of deferred action, during which time they are protected from deportation and are eligible to work in the United States. After the initial two-year period, DACA recipients may apply for renewal, allowing them to continue to work and live in the U.S. for an additional two years.
DACA does not provide a pathway to citizenship, but it allows individuals to remain in the U.S. temporarily and obtain work authorization. The program has faced several legal challenges and political controversy over the years, with changes to the program being made by different administrations.
Frequently asked Questions
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What is DACA?
DACA, or Deferred Action for Childhood Arrivals, is a program implemented by the U.S. government that provides temporary relief from deportation and allows certain undocumented individuals who came to the U.S. as children to obtain work authorization.
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Who Qualifies for DACA?
To qualify for DACA, an individual must meet several criteria, including: Arriving in the U.S. before turning 16 Continuous residence since June 15, 2007 Being present in the U.S. on June 15, 2012, and at the time of applying Having no lawful status on June 15, 2012 Meeting educational or military service requirements Not having certain criminal convictions
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How Long Does DACA Last?
As of my last training data in September 2021, DACA grants deferred action and work authorization for a period of two years, after which it can be renewed.
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Can DACA Recipients Travel Outside the U.S.?
Yes, DACA recipients can apply for travel authorization, known as Advance Parole, which allows them to temporarily leave the U.S. for specific purposes. However, re-entry is not guaranteed.
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Can DACA Recipients Apply for Federal Financial Aid for Education?
No, DACA recipients are not eligible for federal financial aid, including Pell Grants. However, they may be eligible for certain state and institutional financial aid programs.
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Can DACA Recipients Apply for a Social Security Number?
Yes, DACA recipients are eligible to apply for a Social Security Number, which allows them to work legally in the United States.
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Can DACA Recipients Apply for a Driver's License?
Yes, DACA recipients may be eligible for a driver's license depending on the laws of the state where they reside.
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Can DACA Recipients Apply for Permanent Residency (Green Card)?
DACA itself does not provide a direct path to permanent residency. However, individuals with DACA status may be eligible for other forms of relief or sponsorship through a qualifying family relationship or employer.
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Can DACA Be Revoked?
Yes, DACA status can be revoked if an individual no longer meets the eligibility criteria or if they engage in certain criminal activities.
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Can DACA Recipients Be Deported?
While DACA provides temporary protection from deportation, it is not a permanent legal status. If a DACA recipient's status expires or is revoked, they may be subject to deportation.
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]]>The post Military Parole appeared first on Kraus Law Corporation.
]]>Military parole is granted by the U.S. Citizenship and Immigration Services (USCIS) on a case-by-case basis, and is only available to individuals who are already abroad and cannot obtain a visa to come to the United States through normal channels. Examples of situations that may qualify for military parole include urgent medical treatment, military operations, and national security or emergency response efforts.
Frequently asked Questions
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What is Military Parole?
Military Parole is a discretionary program that allows certain individuals who are not otherwise eligible for parole into the United States to enlist in the U.S. Armed Forces.
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Who is Eligible for Military Parole?
Eligibility for Military Parole is determined on a case-by-case basis. Generally, individuals who are not lawful permanent residents or U.S. citizens may be considered for Military Parole if they meet specific criteria set forth by the U.S. government.
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How Does an Individual Apply for Military Parole?
The application process for Military Parole is typically initiated by the U.S. Department of Defense (DoD) on behalf of the individual who wishes to enlist in the U.S. Armed Forces. The DoD will work with the U.S. Citizenship and Immigration Services (USCIS) to facilitate the process.
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What are the Benefits of Military Parole?
Individuals granted Military Parole may be eligible to enlist in the U.S. Armed Forces and serve the country. Additionally, they may be eligible for certain immigration benefits, although Military Parole itself does not confer permanent immigration status.
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Does Military Parole Lead to Permanent Residency (Green Card)?
Military Parole itself does not lead directly to permanent residency. However, individuals who serve in the U.S. military may become eligible for other forms of immigration relief, including pathways to permanent residency.
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Can Family Members of Individuals with Military Parole Join Them in the U.S.?
Family members of individuals granted Military Parole are not automatically granted parole themselves. They would need to go through separate immigration processes, such as family-sponsored petitions.
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What Happens After Military Service for Parolees?
After completing military service, individuals with Military Parole may be eligible for certain immigration benefits or pathways to permanent residency. This may depend on factors like their performance, service duration, and eligibility for other immigration relief.
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Can Military Parole Be Revoked?
Military Parole is granted at the discretion of the U.S. government, and it may be subject to revocation if an individual no longer meets the eligibility criteria or engages in behavior contrary to the terms of their parole.
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Are There Other Programs for Non-Citizens to Join the U.S. Military?
Yes, there are other programs, such as the Military Accessions Vital to the National Interest (MAVNI) program, that allow certain non-citizens with specific skills or qualifications to enlist in the U.S. Armed Forces.
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]]>The post Motion to Terminate Removal Proceedings appeared first on Kraus Law Corporation.
]]>There are several reasons why an individual may file a Motion to Terminate, such as:
1.Lack of Jurisdiction:
If the immigration court does not have jurisdiction over the individual's case, such as if they are a U.S. citizen or if they have a pending application for adjustment of status, they may file a Motion to Terminate.2.Change in Circumstances:
If the individual's circumstances have changed since their removal proceedings, such as if they have obtained legal status or if the conditions in their home country have improved, they may file a Motion to Terminate.3.Prosecutorial Discretion:
If the Department of Homeland Security (DHS) agrees that the individual should not be removed, they may file a Motion to Terminate to request that the court end the removal proceedings.4.Faulty Notice to Appear:
if the NTA does not have the place, date or time of a future removal hearing, a Motion to Terminate is warranted.To file a Motion to Terminate, an individual must complete and file the appropriate forms with the immigration court, and provide evidence to support their request. The motion must be filed within a certain time frame, which varies depending on the circumstances of the case.
Frequently asked Questions
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What is a Motion to Terminate Removal Proceedings?
A Motion to Terminate Removal Proceedings is a formal request made by a respondent (individual facing removal or deportation) to the immigration court to dismiss or end the removal proceedings against them.
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When Can a Motion to Terminate be Filed?
A Motion to Terminate can be filed at any stage of the removal proceedings, but it is typically filed when there are compelling legal or factual reasons to believe that the proceedings should not continue
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What are Some Common Grounds for Filing a Motion to Terminate?
Common grounds for filing a Motion to Terminate include changes in immigration law, evidence of eligibility for relief, substantial changes in circumstances, or legal errors in the proceedings.
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Who Can File a Motion to Terminate?
The respondent or their legal representative can file a Motion to Terminate on the respondent's behalf. It is crucial to have proper legal representation when filing such a motion.
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How is a Motion to Terminate Filed?
A Motion to Terminate is typically filed with the immigration court where the removal proceedings are taking place. The motion should be properly formatted, include legal arguments, and be supported by evidence.
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Can a Motion to Terminate be Filed in Absentia?
Yes, a Motion to Terminate can be filed even if the respondent is not physically present at the hearing. However, it is highly recommended to have legal representation to ensure that the motion is properly prepared and filed.
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Can a Motion to Terminate be Filed Based on Changed Circumstances?
Yes, if there have been significant changes in the respondent's circumstances, such as changes in country conditions or personal situations, this can be a valid ground for filing a Motion to Terminate.
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What Happens After a Motion to Terminate is Filed?
After a Motion to Terminate is filed, the immigration judge will review the motion and may schedule a hearing to consider the arguments and evidence presented. The judge will then make a decision on whether to grant or deny the motion.
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What if the Motion to Terminate is Granted?
If the Motion to Terminate is granted, it means that the removal proceedings are terminated, and the respondent is no longer facing deportation. However, it's important to note that this does not necessarily grant legal status.
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What if the Motion to Terminate is Denied?
If the Motion to Terminate is denied, the removal proceedings will continue, and the respondent will need to pursue other forms of relief or defenses against deportation.
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]]>The post Waiver for Certain Criminal Activity (INA Section 212(h)(Form I – 601) appeared first on Kraus Law Corporation.
]]>Under U.S. immigration law, there are certain criminal offenses that can make an individual inadmissible to the United States. These offenses include crimes involving moral turpitude, drug offenses, prostitution, and certain other crimes. However, a 212(h) waiver may be available in certain cases.
To be eligible for a 212(h) waiver, an individual must meet the following requirements:
1.They must be applying for admission to the United States or applying for adjustment of status;
2.They must be inadmissible due to a criminal conviction or other activities;
3.They must demonstrate that the denial of their admission would result in extreme hardship to their U.S. citizen or lawful permanent resident spouse, parent, or child;
4.They must be otherwise admissible to the United States, except for the specific ground of inadmissibility.
It's important to note that the 212(h) waiver is discretionary, meaning that the decision to grant the waiver is up to the discretion of the immigration officer or judge. Additionally, certain criminal offenses, such as crimes involving moral turpitude or controlled substances, may have additional requirements for the waiver to be granted.
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]]>The post Waivers for Misrepresentation (INA section 212(i)(Form I – 601) appeared first on Kraus Law Corporation.
]]>Under U.S. immigration law, if an individual is found to have willfully misrepresented a material fact in an immigration application, they can be permanently barred from entering the United States. However, a waiver for misrepresentation may be available in certain cases.
To be eligible for a waiver for misrepresentation, an individual must meet the following requirements:
1. They must be the spouse or child of a U.S. citizen or lawful permanent resident, or the parent of a U.S. citizen;
2. They must have misrepresented a material fact in a prior visa or immigration application;
3. They must demonstrate extreme hardship to their qualifying relative, who would suffer if the waiver is not granted;
4. They must not have any other grounds of inadmissibility that cannot be waived.
If the waiver for misrepresentation is granted, the individual may be eligible for a new visa or immigration benefit.
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