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Convention Against Torture Relief or Pardon for Mexican veteran ordered removed

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  • Convention Against Torture Relief or Pardon for Mexican veteran ordered removed

    Chicago lawyer fights Army veteran's deportation order - The San Diego Union-Tribune

    Interesting story. U.S. army veteran, national of Mexico, permanent resident (green card holder) in the U.S., convicted in the U.S. of a drug offense (presumably sales or possession with intent, not merely possession, in that he did prison time for it), now being ordered removed back to Mexico.

    He's sought Convention Against Torture (CAT) relief from removal, and the CAT relief was denied. Basically, CAT relief provides relief from removal (deferral) if the applicant proves that it is "more likely than not" that he will be tortured upon removal to his native country. Easy to prove in a country like, for example, Iran where government torture is rampant. Hard to prove in Mexico. The argument in this case is that army veterans are routinely recruited by cartels upon arrival in Mexico and forced to work for them, or, I suppose as the argument goes - are tortured if they do not. But, to establish CAT, the torture must somehow either be at the hands of the government, or something that will occur despite the best efforts of the government. Pretty borderline CAT argument here, that the immigration judge did not buy.

    And then an advocate quoted in this article is saying that if the veteran got a governor's pardon for the conviction he would have no record at all, and would therefore not be subject to removal. Unfortunately, and apparently even few immigration attorneys know this, pardons are ineffective for purposes of immigration law for drug convictions (ineffective for "a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802))").

    The veteran's attorney is also apparently trying to obtain a grant of citizenship (via naturalization) to this guy retroactively, back to sixteen years ago when he first joined the army - but such arguments, more or less based on that the guy pledged "permanent allegiance" to the U.S. at some point in the past (in this case at the point when he joined the army and swore to defend the U.S.), have pretty universally failed. Absent his having applied for naturalization back then and having gone through the process, that argument is grasping at straws.

    The only possible relief for this guy, that I see, is a sort of post conviction relief known as a Writ of Error Coram Nobis, where the conviction is "vacated" for all purposes, including for immigration. But, such writs are granted only where some sort of legal issue came up after conviction, that was not known before conviction, or - more typically, upon agreement of all the parties (defense, prosecution and judge), in a sort of stipulated agreement. In the end, everyone would have to step up to help this guy stay in the U.S., and the present government, isn't too friendly to immigrants.
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