Eligibility for Asylum, Withholding of Removal, and Convention Against Torture with Mexico as an Example Case Study

Certain regions of the world are particularly dangerous places to live and survive. The United States has always been a welcoming country to those individuals who have legitimate and real concerns for their safety and well being if they continue to live in their own country. The U.S. Government allows qualified individuals to obtain lawful permanent residency through asylum/refugee applications. Qualified and credible applicants in the United States first have to file for Asylum through I-539 petition. There is no filing fee for this application. 150 days after this application, individuals can file for work permit through filing of the I-765 form under (c)(8) category. Pending asylum applicants can get work permit while their case is in process.

So what is an asylum? Under 8 U.S.C. § 1158(b)(1), the Attorney General may grant

asylum to any applicant who qualifies as a "refugee." The Immigration and Nationality Act ("INA") defines a "refugee" as any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of either or and 1) race, 2) religion, 3) nationality, 4) membership in a particular social group, or 5) political opinion. The burden of proof is on the applicant to prove that he or she belongs to the former five categories. Land ownership or belonging to a family could be interpreted as being a member of a group. You must consult with an expert attorney to determine whether you belong to the above referenced items.

If you have a criminal background, but your conviction is not a particularly serious crime, then you can request withholding of removal. "To qualify for withholding of removal, an alien must demonstrate that it is more likely than not that he would be subject to persecution on one of the specified grounds." Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001) (internal quotation marks omitted); see also INS v. Stevic, 467 U.S. 407, 430 (1984); Tamang v. Holder, 598 F.3d 1083, 1091 (9th Cir. 2010); Hanna v. Keisler, 506 F.3d 933, 940 (9th Cir. 2007); Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006); 8 C.F.R. § 1208.16(b)(2). "This clear probability standard for withholding of removal is more stringent than the well-founded fear standard governing asylum." Al-Harbi, 242 F.3d at 888-89 (internal quotation marks and citation omitted); see also Viridiana v. Holder, 646 F.3d 1230, 1239 (9th Cir. 2011); Tamang, 598 F.3d at 1091; Zehatye, 453 F.3d at 1190; Sowe v. Mukasey, 538 F.3d 1281, 1288 (9th Cir. 2008) ("When the government rebuts an applicant's well-founded fear of future persecution, it defeats the applicant's asylum claim, and his or her claim for withholding of removal."); Fedunyak v. Gonzales, 477 F.3d 1126, 1130-31 (9th Cir. 2013).

If you are convicted of a particularly serious crime (crimes of substantial violence or evil or dishonesty) then you can still apply for relief, but the standard is now higher as the burden of proof is more likely than not that you will be either tortured or killed. Torture is defined as:

"Any any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."

Kamalthas v. INS, 251 F.3d 1279, 1282 (9th Cir. 2001) (quoting 8 C.F.R. § 208.18(a)(1) (2000)); see also Madrigal v. Holder, 716 F.3d 499, 508 (9th Cir. 2013); Edu v. Holder, 624 F.3d 1137, 1144 (9th Cir. 2010) (explaining that the CAT defines torture as the "intentional infliction of severe pain or suffering by (as relevant here) public officials … ."); Sinha v. Holder, 564 F.3d 1015, 1026 (9th Cir. 2009); Villegas v. Mukasey, 523 F.3d 984, 989 (9th Cir. 2008) (explaining that "petitioner must show that severe pain or suffering was specifically intended – that is, that the actor intend[ed] the actual consequences of his conduct …"). "'Torture is an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment that do not amount to torture.'" Al-Saher v. INS, 268 F.3d 1143, 1147 (9th Cir. 2001) (quoting 8 C.F.R. § 208.18(a)(2)), amended by 355 F.3d 1140 (9th Cir. 2004) (order).

Let's give an example about Mexico. According to the Country Reports, the absence of effective law enforcement agencies, along with inability of Mexican authorities to protect their citizens from trafficker coercion are widespread and well-known. No witness protection program exists in Mexico. Mexican authorities, in practice, are often complicit with the drug traffickers.

Various newspaper articles demonstrate that the violence has reached its peak in 2013 and 2014. Said reports show that Mexican criminal organizations routinely rely on the coerced recruitment of Mexicans who lived in California or other border states for long time. Individuals however have to explain why they are different from the regular crowd through past events, or specific traits that they have which would make them a target.

Government involvement is a key ingredient for this relief. But even when the government officials and members of the country's security forces are not directly involved in acts of torture and murder, high-and mid-level Mexican authorities frequently know in advance about, and acquiesce to the reprisals carried out by henchmen from drug trafficking gangs. Such governmental complicity or acquiescence is currently so widespread in Mexico that members of drug gangs now routinely dress as police or military officials or use other governmental disguises to carry out smuggling operations, extortion activities and even torture and murder. In effect, even if not directly involved in the drug trafficker brutal practices, many members of the Mexican security forces at all levels of government routinely adopt an attitude of willful blindness in exchange for bribes from the traffickers.

Please contact us for further information so that we can give you the right and effective advice for your eligibility.