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Asylum Law, Torture Convention, and Withholding of Removal

What prompted me to write about the issues stated above is an article titled, “Court Reverses Ruling Bringing 17 Detainees to The U.S.” on Yahoo today by Matt Apuzzo, an Associated Press writer.  According to the writer, the U.S. Court of Appeals for the District of Columbia overturned a federal District Court’s decision to allow the 17 detainees to enter the U.S.  The writer wrote and I quote, “Only the executive branch, not the courts, can make decisions about immigration, the appeals court said.  This statement is erroneous and is misleading.  The following blog is intended to clarify the issue of whether the U.S. Federal Courts (the Judicial Branch) or the President (the Executive Branch) has the power to make decisions on immigration law.  In short, both branches have the power to “make decision” on immigration law whereby the executive branch enforce the law and the judiciary branch interprets the law.  In addition, I will also discuss the issue of whether these 17 detainee could or should be allowed to enter the U.S. based on current U.S. immigration law.

Brief Review of The U.S. Legal System

As you may know, the legislative branch (congress) adopts bills in which the executive branch signs into laws.  The executive branch also has the responsibility to execute and enforce such laws.  In executing its duties, the executive branch may adopt regulations and guides to assist in the administration of same.  The judiciary branch, the federal court systems, interprets such law and also determines whether the law or regulation is inconformity with the U.S. Constitution.

U.S. Immigration Law and Administration

The executive branch is divided into various departments.  With respect to the immigration law, there are three major departments that process and adjudicate immigration law and policies.  The Department of State, which consists of the U.S. Consular Offices administer visa applications abroad.  The Department of Homeland Security, which includes the U.S. Custom and Border Protection, U.S. Citizenship & Immigration Services, and Immigration Custom Enforcement, process immigration applications in the U.S. as well as initiate and prosecute removal proceedings.  The Department of Justice, which includes the Attorney General and the Executive Office of Immigration Review (the Board of Immigration Review and the Immigration Court system) adjudicate removal cases and immigration applications filed with the court. 

If all of the above sounds confusing, it is.  What is important to remember is that the executive branch process immigration applications, enforce immigration law, and protect our borders.  Thus, it is within the executive office’s power to adjudicate immigration benefits, including the ability for the 17 detainees to parole into the U.S. while waiting to file other immigration benefits, such as asylum, withholding or removal, and/or benefits under the United Nations Convention Against Torture (See below). 

Asylum and Related Benefits

The 17 men mentioned in the article are political activists to fight against the Chinese communist government for independence.  They are neither affiliated nor obtain support from terrorist groups who are enemy of the State (enemy combatant).  That is, there is NO relation between these ethnic minority Chinese and the Taliban, Al Qaeda, Hamas, Hezbolla, or any other group that are deemed a danger to the U.S. or its citizens.  In my opinion, they are freedom fighters against the oppressed Chinese Communists authoritarianism government.  As such, they are NOT a threat to the U.S.  They are, however, a threat to the Chinese commies and they would be tortured, persecuted, and killed should they be returned to China. 

U.S. Asylum law permits those that present evidence of past persecution or credible fear of future persecution based on their political belief, ethnicity, sex, religion, or association with a particular group to be paroled into the U.S. while waiting to file for asylum, withholding of removal, and torture convention.  If asylum is granted, the person may be able to obtain a green card and become a permanent resident.  If the asylum application is denied but that the Attorney General granted withholding of removal or benefits under the torture convention, the person will not be removed from the U.S. and may obtain work authorization unless there has been a change of circumstances in their home country.  Based on the information provided to the court, the men most likely are eligible to parole into the U.S. as well as qualified for asylum.  Please read my previous articles for requirements and the application process.

Why Did The Court of Appeals Overturned the District Court’s Decision to Allow the 17 Men to Parole Into The U.S.?

The most likely reason why the Court of Appeals overturned the District Court’s decision is because the issue if not ripe.  That is, the issue has not been properly processed and the District Court’s decision was prematured.  Notice, the President and its administrative departments, the Attorney General in this case, have not make a decision whether to allow the 17 men to parole into the U.S.  Again, the decision to enforce immigration law is within the power of the executive branch.  Once the Attorney General has made a decision, and if such decision is a denial of entry, then the men would have the opportunity to file suit with the Federal Court and/or to Appeal such decision with the Court of Appeals.  As its presence stage, the men are NOT considered to have been “admitted” into the U.S. even though Guantanamo Bay is considered U.S. soil and there has been no decision by the President and the Attorney General whether to admit these men.  Thus, the reason why the court made such conclusion was because of “ripeness,” and NOT because the U.S. Courts does not have the power to interpret immigration law, as stated by the Associated Press’ writer. 

Should you are your family has any questions regarding U.S. immigration law, asylum and refugee law, or obtain other immigration benefits, please contact one of our U.S. Asylum Application Lawyers and our Houston Immigration Attorneys at Veritas Legal Group.  Our U.S. Immigration Lawyers can be reached at 832-484-9015 or through our online web inquiry.