Criminal Defense of Immigrants

The United States is a signatory to the U.N. Convention Against Torture, which prohibits sending a person back to a country where s/he is likely to be tortured.[110]  The relief granted includes withholding of removal under the Convention (different from withholding under the Act), or, if the person has been convicted of a “particularly serious crime,”[111] the relief includes “deferral” of removal to the country.  Even though a noncitizen granted deferral under the CAT will escape forced return to the country of torture, it is possible that s/he will remain in indefinite detention here in the United States.[112]  The removal order remains in effect, and can be executed if conditions change so the CAT no longer applies to prevent removal.  An aggravated felony conviction will not bar “deferral,” but may be considered a “particularly serious crime,” which would bar CAT withholding of removal.

                The Seventh Circuit has found that a noncitizen with an aggravated felony conviction is barred from seeking judicial review of a denial of CAT relief.[113]  The Eighth Circuit has found that it lacks jurisdiction to review a factual determination by an immigration judge as to whether a noncitizen would be subject to torture because this question is not a constitutional claim or question of law.[114]

[110] In Matter of YL, 23 I. & N. Dec. 270 (A.G. 2002), the Attorney General held that the applicant must demonstrate that the torture feared would be inflicted by or with the acquiescence of a public official or other person acting in an official capacity, following Matter of SV, 22 I. & N. Dec. 1306 (BIA 2000); Wang v. Ashcroft, 320 F.3d 130 (2d Cir. Feb. 6, 2003) (noncitizen not entitled to CAT since he failed to establish that he is “more likely than not” to be tortured if returned to China).

[111] See § 24.31, infra.

[112] 8 C.F.R. § 208.17(b)(1)(ii), (c).  But see Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491 (2001), discussed at § 15.21, supra.

[113] Petrov v. Gonzales, 464 F.3d 800 (7th Cir. Oct. 6, 2006) (aggravated felony conviction bars court of appeals, under 8 U.S.C. § 1252(a)(2)(C), INA § 242(a)(2)(C), from reviewing noncitizen’s claims under the Convention), following Hamid v. Gonzales, 417 F.3d 642 (7th Cir. 2005).

[114] Hanan v. Gonzales, 449 F.3d 834 (8th Cir. 2006).