If a non-citizen is convicted of an “aggravated felony” then deportation is virtually certain.  This term “aggravated felony” is somewhat misleading, because it does not have to be a felony, nor must it be “aggravated.”  But there are a handful of cases – extremely rare – where the immigration law allows relief for aggravated felons in the form of (among others) indefinite deferral of removal.  Our firm recently enjoyed one such victory.

If an alien may show that it is more likely than not that he will be tortured at the hands of the government (or at least with government acquiescence) then that alien cannot be deported.  This is because the United States signed an international treaty known as the Convention Against Torture, or CAT.   In our case was a young man from Somalia who had recently completed a nearly 5 year sentence in a federal correctional facility.  

Our argument was relatively straightforward: our client was entitled to protection under Article 3 of the Convention Against Torture (CAT) because it is more likely than not that Al-Shabaab or the Somali government would detain him and torture him if he returns.  In order to establish this, we had to show that the acts that would be perpetrated against him fulfill the following six basic elements of torture: 1) an intentional act; 2) the infliction of severe pain or suffering; 3) for a broad array of wrongful purposes; 4) by or sanctioned by a public official; and 5) not arising out of lawful sanctions.

When examining whether it is more likely than not that our client would be tortured upon return to Somalia, the Court had to consider all relevant evidence, including: evidence of past torture inflicted upon our client and/or his family, evidence that he could relocate to a part of Somalia where he is not likely to be tortured, evidence of gross, flagrant or mass violations of human rights within the country of removal; and other relevant information regarding conditions in Somalia.  Further, when determining the likelihood of torture from different entities, the Court cannot separately consider whether the likelihood of torture by each entity amounts to greater than 50%, but rather must examine the cumulative probability of torture by the group of entities.  8 CFR § 1208.16(c)(3)(ii); see also Kamara v. Att’y Gen. of the U.S., 420 F.3d 202, 213-15 (3d Cir. 2005).

We presented evidence, via testimony of family members and an expert, that ifhe were to be deported to Somalia, he would likely be detained by the “Transitional Federal Goverment” of Somalia.  Since he grew up in the US, he would be unable to prove his lineage and clan membership, and likely unable to disprove his relationship with Al-Shabaab, the terrorist extremist group vying for control of the country.  Al-Shabaab, in turn, would be highly interested in an Americanized youngster fluent in English, for purposes of recruitment in the Western world.  Refusal to join a group such as Al-Shabaab is not tolerated and buys one a swift execution.  So our client would be detained by the federal government, but even if released, would be unable to avoid targeting by Al-Shabaab, which still controls vast swaths of the country.

Judge Harris of the Arlington Immigration Court issued the opinion.

In fiscal year 2012, 9,710 CAT applications were denied (not counting thousands more that were abandoned) and deferral of removal was only granted in 129 cases, a success rate of only 1.3%.  See FY2012 Statistical Year Book, USDOJ, Executive Office of Immigration Review at p M1.

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