To begin, we will show the appropriate legal standards for each Asylum, Withholding of Removal, and Convention Against Torture (CAT) claims:
Asylum 8 U.S.C. § 1158
To demonstrate a well-founded fear of future persecution, an applicant for asylum must prove (1) a fear of persecution on account of protected characteristics, such as race, religion, nationality, membership in a particular social group, or political opinion; (2) a reasonable possibility of suffering such persecution if he were to return to that country; and (3) that he is unable or unwilling to return to or avail himself of the protection of, that country because of such fear. 8 C.F.R. § 208.13(b)(2)(i). Not all treatment that is unfair, unjust, or even unlawful or unconstitutional will qualify as persecution, only threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom. An applicant must have a subjective fear of future persecution, and that fear must be objectively well-founded. The feared acts of persecution must be committed by the government or forces the government is either unable or unwilling to control. Asylum applicants must apply within one year of entering the United States unless the applicant can show a change of country conditions .8 C.F.R. § 1208.4
Withholding of Removal 8 U.S. C. § 1231
An alien is entitled to withholding of removal under the Immigration and Nationality Act if the Attorney General decides that the alien’s life or freedom would be threatened in the country the alien is removed too because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C.S. § 1231(b)(3)(A). An alien bears the burden of establishing a clear probability that his or her life or freedom would be threatened, meaning that it must be more likely than not that the alien would be subject to persecution. To constitute persecution, the actor causing the harm must be the government or forces that the government is unwilling or unable to control.
Convention Against Torture (CAT) 8 CFR § 208.18
To prevail on a claim under the Convention Against Torture, an alien is required to establish that it is more likely than not that he would be tortured if removed to his native country. 8 C.F.R. 1208.16(c)(2). To establish torture under the CAT, he is required to show that his severe pain or suffering would be 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. 8 C.F.R. 1208.18(a)(1).
To establish that a foreign government would acquiesce in the torturous acts of an applicant’s political opponents and gang members, an applicant for relief under the Convention Against Torture must demonstrate that, prior to the activity constituting torture, a public official was aware of it and thereafter breached the legal responsibility to intervene and prevent it. The applicant can meet this standard even if the government does not have actual knowledge of the activity if he produces sufficient evidence that the government is willfully blind to such activities.
To establish entitlement to relief under the Convention Against Torture, an applicant is not required to show that he suffered mistreatment rising to the level of persecution on account of any protected status.
How to present evidence?
While an applicant’s credible testimony by itself can satisfy their burden of proof for Asylum, Withholding of Removal, and CAT claims, the cases where an applicant’s credible testimony alone meets the burden of proof to qualify for Asylum, Withholding of Removal, or CAT are rare. Credible testimony should be corroborated with clear and concise expert opinions and reports that that can provide a boost to the applicant’s testimony and whatever corroborating evidence that is presented to the Court. By no means are we discounting the importance of other corroborating evidence that should be presented to support Asylum, Withholding of Removal, and CAT claims. These claims should be supported with as much documentation as possible. First and foremost, the United Nations produces a country report for all countries each year that is viewed very favorably and, most importantly, credible by the courts. A detailed search of media, both international and local, should be performed to find news articles that will support and corroborate the claim of persecution or torture. Further medical records should be obtained, and eyewitness reports and affidavits that will support the claim should also be obtained whenever possible. Further, police reports that can document the reporting of abuse and the government’s action or inaction of bringing the perpetrators to justice. Asylum, Withholding of Removal, and CAT claims are not easy, and an expert witness is not a magic bullet that will bring even the most scrutinizing judge to his knees. An immigration expert witness should be the icing on the cake, the neat bow on top of your case that shows the court that you have done your job and presented your best case. Courts give a great amount of weight to expert witnesses, particularly when their testimony supports and corroborates already strong evidence. Experts in immigration cases are invaluable and are an indispensable part of any effective Asylum, Withholding of Removal, and CAT claim. Indeed as stated above, a diligent search of circuit courts will show that a large percentage of Asylum, Withholding of Removal, and CAT claims that were successful were supported by an immigration experts report.
What to look for in an Immigration expert witness.
First of all, you should check their name in Lexis Nexis or Westlaw and see if they have had success in other cases. If they have a solid track record of providing the courts with credible expert testimony, that should be a huge sign that you may have found your person for the job! Secondly, you should make sure that you are knowledgeable on both the country conditions and the state of the government. For example, is the government infiltrated by criminal elements, or does it cooperate or turn a blind eye to torture and persecution. Does the government itself display bias to ethnic, religious groups, or protected classes of individuals, for example, members of the gay community of transgendered individuals? No matter what, even if you can show persecution or torture by forces outside the government, you still will have to show that the government participates in the persecution or torture or at the least acquiesces to the behavior or turns a blind eye.
In some Eastern European antisemitism is still a problem, as well as ethnic persecution against ethnic Russians in some former Soviet bloc countries, and in other countries, there is persecution against Muslims. In some central and south American countries, gangs and drug cartels are rampant, with deep connections in the government. However, that a country is dangerous or even war-torn is not enough for a successful asylum or withholding of removal claim. Any successful persecution claim must be based on the membership in one of four protected classes; as shown above, these protected classes are race, religion, nationality, membership in a particular social group, or political opinion. Again, this is where having a skilled expert witness is essential to show that a petitioner is part of one of the protected classes. In many communist countries, pro-democracy groups and protesters are subjected to persecution, incarceration, and even torture at the hands of the government itself. An experienced expert is essential to connect the dots, that is, to give the court a clear and concise road map that connects the persecution to a protected group and establish the nexus to that is that they will participate or at least access to the persecution. In Mexico, Central, and South America, many gangs are “blood out” gangs, which means that they will kill former gang members on site. This poses a particularly dangerous situation to former gang members that quit their respective gangs and fled to the United States seeking a fresh start. Gangs and cartels with deep connections in the government monitor airports and even monitor people that are deported from the United States! Corrupt government officials have been known to alert the gangs when their former members are expected to return to the country. This is as good as a death sentence and can establish eligibility for CAT. However, all of these things individually need to be tied together and given to the court in a clear and concise manner, as is accomplished by hiring an experienced immigration expert witness.
How to hire an immigration expert witness.
The first thing that needs to be understood is the difference between a “fact witness” and an “expert witness.”
A fact witness is sometimes referred to as “eye witness” or “percipient witnesses,” this is because fact witnesses can only testify to particular facts that they have specifically observed. A fact witness can not give an opinion about a topic that requires special education, training, or knowledge.
An expert witness can, however, testify as to their opinion. A person can be an expert based on their knowledge, skill, education, training, and/or experience, and an expert opinion must be based on sufficient facts and data and must be based on reliable principles and methods.
For example, if a political protester was beaten by the police because of their participation in a political rally, any person who saw the beating witnessed what the victim was doing prior to or after the beating, and even hospital staff that treated the victim would all be fact witnesses. An expert, however, could testify as to their opinion as to why the government forces were motivated to beat the particular individual in the first place and to what their opinion of the possibility of them having a reasonable fear of persecution, the legal standard for asylum, whether it is more likely than not they will be persecuted if returned to their home country, the legal standard for withholding of removal or whether it Is more likely than not that they will be tortured if returned to their home country, the legal standard for deferral of removal under the convention against torture. This expert opinion could be given once the court is satisfied that the expert has relevant qualifications and that expert opinion is based on sufficient facts and data and sound principles and methods.
As you can see from the above, to win an asylum withholding of removal or CAT claim, you need to show the court that and put reliable evidence into the record that an applicant for relief has a:
Reasonable fear of persecution because of their race, religion, nationality, membership in a particular social group, or political opinion, and the government, or forces that the government can not or refuses to control will persecute an individual and/or that the government will acquiesce to the persecution the legal standard for asylum.
That it is more likely than not (This is basically a 51% chance) that a person will be persecuted because of their race, religion, nationality, membership in a particular social group, or political opinion, and the government, or forces that the government can not or refuses to control will persecute an individual and/or that the government will acquiesce to the persecution the legal standard for asylum.
That it is more likely than not (This is basically a 51% chance) that a person will be tortured, this torture need not be because of their race, religion, nationality, membership in a particular social group, or political opinion; it could because they quit a violent “blood out gang” or they aided the government in prosecuting gang or cartel members. But a person still needs to show that the government or forces that the government can not or refuses to control will torture an individual and/or that the government will acquiesce to the torture the legal deferral of removal under the Convention Against Torture.
Courts have defined persecution to include the following:
The above definitions aren’t very satisfying. More often, looking at what actual types of harm have been recognized as forms of persecution helps. These include:
- physical violence: for example, beating, assault, handcuffing, rape or sexual abuse, female genital mutilation, electric shocks, invasive physical examinations, forced abortion or sterilization, forced labor, and so on, whether or not this caused serious injuries or long-term damage or required medical attention.
- torture: a severe human rights violation that may involve physical violence, deliberate infliction of mental harm, prolonged unlawful detention, rape, and sexual violence, and so on
- other violations of human rights: for example, genocide or slavery
- threats of harm: particularly if the threatened harm is serious, caused emotional or psychological damage, or are credible, for example, because the persecutor has already inflicted harm on the person or his or her family or others similarly situated
- unlawful detention: punishment for a regular crime is not persecution, but if the person is detained without due process or formal charges or for discriminatory or political reasons, this may rise to the level of persecution, particularly if the detention was combined with mistreatment
- infliction of mental, emotional, or psychological harm: this can include intimidation, surveillance, interference with privacy, long-term threats, or being forced to engage in conduct that is not physically painful or harmful but is abhorrent to the person’s deepest beliefs
- substantial economic discrimination or harm: for example, deliberate deprivation of food, housing, employment, or other life essentials, or ransacking, destruction, or confiscation of property
- other discrimination or harassment: for example, passport denial, pressure to become an informer, or restrictions on access to education; also, some applicants might need to show a combination of actions against them if none by themselves was serious to fit traditional understandings of persecution.
Torture has been defined by the courts as:
Convention Against Torture generally defines torture as the infliction of severe physical and/or mental suffering committed under the color of law. This is a shortened definition for a very complicated issue. For more information about torture under the CAT, refer here.
As you can see from the above, in order to meet the burden of proof for Asylum, Withholding of Removal, and Convention Against Torture claims, you need opinions about the motivation of persecutors and opinions as to the likelihood of persecution and torture if a person if returned to their home country. The opinions cannot be credibly given to the court by lay or fact witnesses. Only strong expert witness reports and opinions will be accepted by most courts to meet the burden to win your claims.
In choosing an immigration expert witness, that expert needs to have the specific education and training to form clear and concise opinions based on the specific facts and circumstances of the case. When strong corroborating evidence exists, coupled with a clear, concise, expert opinion, courts look upon this very favorably, and you will dramatically increase your chances of success to win your win Asylum, Withholding of Removal, and Convention Against Torture (CAT) claims.
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