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Philip Levin & Associates

Immigration Law

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Attorney General Holds That BIA Should Consider De Novo The Application Of Law To The Facts Of This Case, Including Whether The Deprivation That Respondent Would Be Likely To Encounter Upon Removal To Mexico Would Constitute “Torture” Within The Meaning Of The Department Of Justice Regulations Implementing The Convention Against Torture (CAT). To Constitute “Torture” Under These Regulations, An Act Must, Among Other Things, Be Specifically Intended To Inflict Severe Physical Or Mental Pain Or Suffering. 8 C.F.R. §1208.18(a)(5). Additionally, Torture Does Not Cover Negligent Acts Or Harm Stemming From A Lack Of Resources. To Constitute “Torture”, An Act Must Also Be Motivated By 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.

May 12, 2020 Philip Levin

On February 26, 2020, U.S. Attorney General (AG) William Barr directed the Board of Immigration Appeals (BIA or Board) to refer the instant case to him for review of its decision per 8 C.F.R. §1003.1(h)(1)(i), vacating that decision and remanding the case to the BIA for review by a three-member panel. DHS seeks to remove Respondent to Mexico, but Respondent contends that upon his return, he will be sent to a mental health care facility whose poor conditions rise to the level of “torture”. Respondent seeks deferral of removal under CAT; he is ineligible for asylum or withholding of removal because of a prior conviction for attempted sexual abuse of a child. 

To qualify for deferral, noted the AG, Respondent must prove that it is more likely than not that he will be tortured if removed to the proposed country of removal, citing 8 C.F.R.§1208.16(c)(2). Here, the Board had dismissed DHS’s appeal of the IJ’s decision granting deferral, concluding there was a clear error in that determination,i.e., “that it is more likely than not that he will be tortured by or at the instigation of with the consent or acquiescence (including willful blindness) of a public official or of another other person acting in an official capacity in Mexico.” 

The AG held that the BIA decision was “contrary to law” because, although the Board reviews an IJ’s factual findings for clear error, it reviews de novo questions of law, discretion, and judgment and all other issues in appeals, including the application of law to fact. The BIA had improperly merged the factual and legal question presented by Respondent’s claim that he was likely to be tortured in Mexico, concluded the AG, reasoning that while the IJ’s prediction of what was likely to happen to Respondent if removed may have been a factual determination reviewed only for clear error, whether that predicted outcome satisfies the regulatory definition of “torture” constitutes a “legal judgment” subject to de novo review, as it necessarily involves applying the law to decided facts. 


The AG thus ordered the Board on remand to consider de novo whether the deprivations that the IJ found Respondent likely to experience in Mexico “would rise to the level of torture under the governing CAT regulations and the relevant precedents.” In doing so, it must remember that, to constitute “torture,” as act must be specifically intended to inflict severe physical or mental pain or suffering, citing to 8 C.F.R. §1208.18(a)(5). Additionally, the Board “should further address the remaining elements of the legal definition of torture, again considering de novo whether the facts as found” by the IJ “are sufficient to establish each element.” Among other things, Respondent must prove that the Mexican health workers who are alleged to engage in torture would do so by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. Respondent must also show that these healthcare workers would be motivated by 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. Absent these determinations, held the AG, “a claim for protection from removal under the CAT must fail.” Matter of R-A-F-, 27 I&N Dec. 778 (A.G. 2020).

Filed Under: Appeal, Attorney General, BIA, Blog, Mexico

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R-1
TN

The TN nonimmigrant classification allows qualified Canadian and Mexican citizens to enter the U.S. and engage in professional business activities. PL&A will help you navigate through the TN application process by evaluating your eligibility, preparing supporting documentation for your application, and ultimately filing your application. 

B-1

PL&A will guide you through the consular process to receive a B-1 visa for specific short-term business purposes ranging from contract negotiations to seminars and conferences.

O-1

O-1 visas are for persons of extraordinary ability in the sciences, arts, education, business or sports. 

J-1

Administered by the Department of State, the J-1 visa is for students, trainees, academics, researchers, professionals or experts participating in an approved Exchange Visitor program. PL&A will assist you and your sponsor with preparing the necessary paperwork and the consular process so you can begin your program at ease. 

E-1 & E-2

E-1 visas and E-2 visas are for nationals of countries with which the United States has a treaty of friendship, commerce and navigation (FCN) or bilateral investment treaty (BIT). If you are a nonimmigrant trader or investor seeking to conduct business operations or develop a new enterprise in the U.S., we will help you file for the appropriate visa. As a recognized expert in this area, Mr. Levin will provide experienced and dependable assistance with E-1 or E-2 visa applications. 

  • E-1: If you are a national of a country that conducts a significant volume of trade with the U.S. (or if you intend to develop trade between the U.S. and your home country) you might be eligible for entry under an E-1 visa. 
  • E-2: The E-2 visa allows investors from treaty countries to enter the U.S. for purposes of directing and developing a business, with all the commitments and risks implicit in entrepreneurial activity. 
L-1

The L-1 visa category is for executives, managers or professionals employed by foreign affiliates of U.S companies. The L-1 visa is divided into two classifications:

  • L-1A Intracompany Transferee Executive or Manager
  • L-1B Intracompany Transferee Specialized Knowledge
H-1B

Many companies in the United States find themselves increasingly dependent on the talent, experience and energy of foreign national workers in professional, technical or specialized occupational fields. These employees typically enter the U.S. on nonimmigrant H-1B visas for “specialty occupations.” 

With extensive experience in business immigration, you can count on PL&A to guide your company or Human Resources department in preparing and filing an H-1B visa petition.

Green Card

Family preservation and reunification is a priority for our firm. Our attorneys have advised and assisted families from all over the world with entry visas, adjustment of status, and other immigration problems. 

  • Immediate Relatives: If you are the spouse, child, or parent of a U.S. citizen, we can help you obtain a green card through an Immediate Relative petition. 
  • Family-Based Preference: If your relative is a U.S. citizen or lawful permanent resident, we can assist you with your green card application through one of the family based preference categories.
Fiances

If you are a U.S. citizen and your fiancé/fiancée or spouse is overseas, our office will assist you to navigate the CIS requirements and regulations to have the case approved and then prepare you and your spouse for the interview at the U.S. Embassy. PL&A will also help you find the best ways to resolve any problems you encounter if a waiver is required in your case.

Marriage

Immigration through marriage is a common means of obtaining permanent residence in the U.S.  Since 1991, Philip Levin & Associates has helped hundreds of couples immigrate to the U.S. and build their lives together. 

  • I-130 Petition and Adjustment of Status: If you are married to a U.S. citizen, present in the U.S. and eligible to do so, our attorneys will assist you in preparing and filing the necessary I-130 petition and I-485 adjustment of status application in the U.S.
  • Immigrant Visa Consular Processing: If you are married to a U.S. citizen and reside abroad, we will assist you in preparing and filing the IV petition with an Embassy or Consulate-General in your native country. 
  • I-751, Remove Conditions on Residence: If you have been married less than two years at the time your green card was initially approved, our office will help you in the joint petition process to become a permanent resident.