The Asylumist

When a person applies for asylum, she generally seeks three different types of relief: Asylum, Withholding of Removal under INA § 241(b)(3), and relief under the United Nations Convention Against Torture.

Of the three, asylum is the best–if you win asylum, you can remain permanently in the United States, you can get a travel document, you can petition to bring certain immediate family members to the U.S., and you can eventually get a green card and become a U.S. citizen.

But some poor souls do not qualify for asylum. Perhaps they filed too late, or maybe they are barred due to a criminal conviction or for some other reason. Such people may still be eligible for Withholding of Removal (“WOR”) under INA § 241(b)(3) or relief under the United Nations Convention Against Torture (“CAT”). I’ve written previously about the benefits (or lack thereof) of WOR. Today I want to discuss CAT: Who qualifies for CAT? How does it differ from asylum and WOR? What are its benefits?

To qualify for CAT, you need to show that it is “more likely than not” that you will face torture at the hands of your home government or by a non-state actor with the consent or acquiescence of the home government. If you fear harm from a terrorist group, for example, you likely cannot qualify for CAT, unless the group is controlled by the government or acting with government sanction.

Of the applicants who fear torture, there are basically two categories of people who receive CAT: (1) Those who are ineligible for other relief (asylum or WOR) because there is no “nexus” between the feared harm and a protected ground, and (2) Those ineligible for other relief because of a criminal conviction.

Let’s talk about nexus first. “Nexus” is a fancy word for “connection.” There has to be a nexus between the feared persecution and a protected ground. An alien may receive asylum or WOR only if she fears persecution on account of race, religion, nationality, political opinion or particular social group. In other words, if you fear that you will be harmed in your home country because someone hates your political opinion, you can receive asylum. If you fear harm because someone wants to steal your money, you probably don’t qualify for asylum, since common crimes do not generally fall within a protected category (I’ve written a critique about the whole nexus thing here).

In my practice, we sometimes encounter the nexus issue in cases from Eritrea. That country has a form of national service that is akin to slavery. People who try to escape are punished severely. However, fleeing national service does not easily fit into a protected category, and thus many Eritreans who face persecution for this reason cannot qualify for asylum or WOR. Such people are eligible for CAT, however, since the harm is perpetrated by the government and constitutes torture.

Now let’s discuss the other group that sometimes receives CAT–people with criminal convictions. Some crimes are so serious under the Immigration and Nationality Act (“INA”) that they bar a person from asylum or WOR. For example, if you murder someone, you can pretty much forget about asylum or WOR. Drug crimes are also taken very seriously by the INA, as are domestic violence offenses. In fact, there is a whole area of law–dubbed “crimmigration”–that deals with the immigration consequences of criminal behavior. Suffice it to say that certain convictions will block you from asylum and/or WOR, and it is not always intuitive which crimes are considered the most serious under the immigration law.

If you are ineligible for asylum or WOR due to a conviction, you will not be barred from CAT. The United States has signed and ratified the CAT, which basically says that we will not return a person to a country where she faces torture. So even the worst criminals may qualify for CAT relief.

So what do you get if you are granted CAT?

There are two sub-categories of CAT: Withholding of Removal under the CAT (which is different from WOR under INA § 241(b)(3)) and Deferral of Removal under the CAT. This means that the Immigration Judge will order the alien deported, but will “withhold” or “defer” removal to the country of feared torture. Of the two types of relief, Withholding is the more stable status. It is granted to people who do not qualify for asylum or CAT due to a nexus problem. It is also available to certain criminals, but not the most serious offenders. Deferral can be granted to anyone who faces torture in the home country, regardless of the person’s criminal history. Deferral is–theoretically at least–more likely to be revoked if conditions in the home country change. In practical terms, however, there is not much difference between the two types of CAT relief.

For both types of CAT relief, the recipient receives an employment authorization document (“EAD”) that must be renewed every year. The person cannot travel outside the U.S. and return. She cannot petition for relatives to come to the United States. She can never get a green card or become a U.S. citizen (unless she is eligible for the green card some other way).

CAT beneficiaries who are detained are not necessarily released. If the U.S. government believes that the person is a danger to the community or security of the United States, she can be kept in detention forever (in practical terms, this is pretty rare, but it is certainly possible).

Also, sometimes ICE harassers CAT (and WOR) beneficiaries by ordering them to apply for residency in third countries. ICE officers know very well that third countries are not clamoring to accept people who we want to deport, so essentially, this is a pointless exercise. When my clients are in this situation, I advise them to comply with ICE’s demands, and eventually (usually), ICE will leave you alone.

CAT relief is certainly better than being deported to a country where you face torture. But for many people, it does not offer the security and stability of asylum. I view CAT as a last resort. We try to get something better for our clients, but we are glad it is available when all else fails.

Kate Sugarman is a medical doctor at Unity Health Care in Washington, DC, a public community health clinic. She works with people who have survived abuse and trauma, including many refugees. As a family physician, she is qualified to make medical diagnoses and prescribe treatments. She has particular experience in diagnosing and treating post-traumatic stress disorder through her family medicine training program and her clinical practice, which focuses on minority and immigrant patients, many of whom suffer from physical and mental disorders. She is also an adjunct faculty member at the Georgetown University Law School Center for Applied Legal Studies (the Law Clinic) in support of their asylum work. Here, she discusses her work, and the new reality of a Trump Administration:

The morning after the election felt like day zero of the apocalypse.

Dr. Sugarman running from one appointment to the next.

Like most of us, I learned that night that Trump had won. But I knew I could not stay up too late to mourn. I had to meet a patient at 7:30 AM for a forensic evaluation.

Just to explain: When I say a forensic evaluation, what I mean is a medical examination that is part of an asylum seeker’s evidence in his or her quest for asylum. I do not perform psychological forensic evaluations, which would mean psychological evidence of the effects of being tortured, such as anxiety, depression or PTSD. Those exams are most often conducted by mental health professionals. I conduct medical forensic evaluations. Most of the effects of torture that I document are visible scarring on the skin from beatings, stabbings, burning, etc. I also document any other visible medical signs of the effects of being tortured, like swelling, hearing loss, damage to bones and joints, etc. I never charge the asylum seekers for these examinations.

I conduct the examination in the following way. First, I read the patient’s personal statement–which explains why that person fears persecution in the home country–so I have a basic idea of what happened. Then I gently interview the patient, always trying my best not to retraumatize the person. The focus of my interview is the physical violence that has left visible scarring and other signs of torture on the person’s body. Then I examine the patient, looking for scarring and other signs of abuse. Since I have performed these examinations for so many years on so many people, I have a sense of whether scarring is consistent with the stated explanation of how it happened.

The 7:30 AM patient had approached me the previous week. He told me that his asylum case had been denied, but he found a lawyer who had agreed to try to reopen the case. He asked me whether I could document his scars. I told him yes, as long as he could bring me his personal statement. The interview and examination were straight forward. As often happens, he only reported one scar to me. I had him get partially undressed at which point, I discovered more scars that he had forgotten to describe to his lawyer or me. Because asylum applicants often fail to remember all their old injuries, I always try to do a “head to toe” examination whenever possible.

After we finished, I rushed off to clinic where I had another asylum seeker waiting for me. This person had no visible scarring, but had been seeing me for some time in clinic to be treated for depression and insomnia due to the torture. His lawyer wanted a summary of my clinic notes describing the emotional distress that this person had been experiencing.

Both patients were extremely grateful for my services.

According to a study from Physicians for Human Rights, forensic reports from physicians can make a big difference in the outcome of an asylum seeker’s application. I choose to do this work because I find it enormously rewarding. I have heard so many times from attorneys that judges and Asylum Officers comment on my reports, saying that the evidence I documented was very helpful in evaluating the applicant’s claim.

I have discovered over the years, in addition, that just the fact of the client presenting their story to me, and my active and compassionate listening, seems to have a therapeutic value to the client. Clients sometimes seem a little less burdened after I have finished listening to them and documenting their scars. Of course, there is no greater gift than when someone comes running into clinic to hug me, and tell me that they were just granted asylum. Twice in the past few weeks, people came up to me, thanking me for my detailed and kind forensic evaluations, which they said were very helpful in their receiving asylum. I had examined each of these people more than five years ago, but they apparently never forgot me.

But now–with the election of Donald Trump–asylum seekers may be feeling more fearful. So what would I tell a Trump supporter? That is a difficult question, but I suppose if Mr. Trump wants to make America great again, we should help wonderful and deserving people be granted asylum. If my grandparents had not been allowed into the United States, then they would have been killed by Hitler, and I would not be here in the U.S. doing this important work.

I cannot undo Trump’s victory, but I am determined to do everything in my power to help as many asylum seekers as possible.

The What and the Why of Torture Convention Relief

A Medical Doctor Reflects on the Treatment and Healing of Torture Survivors