29 October 2005

Family can Now Stay and Work Indefinitely in the United States on the Basis of a Risk of Persecution in Colombia

NEWARK, N.J. 10-28-05
By: Joseph G. Cella, Esq.

An Immigration Judge granted a Colombian family Withholding of Removal based upon the risk that the family would be persecuted by Colombia’s Revolutionary Forces known as FARC. Although the persecution would not be at hands of the Colombian Government, a person(s) is entitled to such protection if the likely persecution would be inflicted by a group or groups that the government cannot or will not control. FARC, which controls up to 30% of Colombia’s territory, is described by the US Department of State as Colombia’s oldest, largest, most capable, and best-equipped terrorist organization.

Having arrived in the United States in September 2000 after FARC had made many threats against the family, the last of which having been an attempted kidnapping of the minor daughter from her school, the family applied for political asylum in Miami, Florida. After an interview by the Asylum Office, the case was referred to Immigration Court for Removal Proceedings. The family then relocated to New Jersey and Retained CELLA & ASSOCIATES, LLC to prosecute their case.

Immediately a Motion to Change Venue to Newark, New Jersey was filed on the grounds that requiring the family to prosecute their case in Miami, while living in New Jersey, would negatively prejudice their ability to effectively present their case. That motion was granted and the case was transferred to Newark, NJ.

The case was tried in Newark during 2003, at the end of which Immigration Judge Henry S. Dogan, in a typically thoughtful and complete decision, denied the application, finding that the experiences endured by the family, although negative, did not rise to the statutory level of persecution, and that, as the adult family members had not been engaged in political activities for quite some time, they would not now be in danger of being persecuted by FARC on one of the five requisite grounds, (race, religion, membership in political social group, political opinion or nationality).

The case was then appealed to the Board of Immigration Appeals.

However, while the case was on appeal, the brother of the wife/mother of the family was executed by FARC in Colombia for his political activities. CELLA & ASSOCIATES filed a Motion to Remand the matter back to the Immigration Court to allow the Judge to consider the new evidence. The Board of Immigration Appeals granted the Motion and the case was sent back to Newark Immigration Court for further proceedings.

Finally, when the Immigration Judge was able to consider the new evidence, which did not exist at the time of the first trial, he granted the family withholding of removal.

Withholding of Removal allows the family to stay in the United States forever, with permission to work, and the ability to travel internationally with a travel document. It does not however, lead directly to lawful permanent residence. For that, the withholdee would have to find an alternative basis such as sponsorship by an employer of family member, and move to reopen proceedings.

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