WITHHOLDING OF REMOVAL SECURED BY ATTORNEY HAMILTON FOR KIKUYU TORTURE VICTIM

Sometimes, in spite of an attorney's best efforts, the alien in removal proceedings, is simply ineligible, for any number of technical reasons, for asylum.  It is at this point that contemporaneous applications such as Withholding of Removal and relief under the Convention Against Torture (CAT) rise to a level of critical importance, since failure to secure either of those two forms of relief (where no other relief applications are pending) could result in deportation or voluntary departure orders against the alien, which would have to be appealed in lengthy and often expensive administrative and/or judicial processes for the alien to remain in the US.

So it was  in my case on July 31, 2012 before Judge Naeslow-Nahas of Los Angeles, California.  At the end of a second half-day of trial, I had convinced the government's attorney that the alien, a Kenyan of the Kikuyu Tribe, met a technical legal exception to the one year filing rule for asylum cases, and that the alien had been tortured based on political opinion and hence did legally qualify for asylum.  Yet asylum claims do not have to be granted by the Immigration Judge, even after the applicant has met all of the legal requirements.  The judge retains discretion which allows her to deny asylum where she is simply unwilling to exercise such discretion favorably.  It is also sometimes the wise and prudent course in some very special cases, for all parties in this circumstance to accept and be grateful for the judge's approval of withholding or CAT relief which are mandatory forms of relief that do not allow for an exercise of discretion, but carry a higher burden of proof than asylum.  Hence, when an applicant wins withholding or CAT, he or she has presented a much more compelling case for that relief than would have been necessary for asylum.

Withholding and CAT are significant victories in Immigration Court because they prevent the government from deporting the alien to the country in which they were persecuted or fear persecution, and permit aliens to continue to renew their employment authorizations and remain in the United States indefinitely in most cases.  The downside is that the alien is not classified as a "refugee" under the law as he or she would have been with a grant of asylum and therefore is not entitled to the "refugee travel document" which would ensure the alien's reentry to the United States should the alien wish to travel outside of the US.  Withholding further does not have derivative benefits, hence spouses and children do not automatically receive withholding (or for that matter CAT) when the principal alien is granted such relief.  Each applicant must qualify for withholding and/or CAT on their own strength.  Further, where the spouse and children are outside of the US, withholding and CAT do not provide for a direct petition for those relatives.  Additionally, withholding and CAT do not provide a direct path to Lawful Permanent Residence and/or later US Citizenship.

We have thus far succeeded to win relief for all clients whose cases we have taken to trial in immigration court, this year.  Our clients are assured that no stone is left unturned in their cases.

By:  Duane M. Hamilton