Luis Posada Carriles scored a small victory in federal immigration court when the judge agreed that he might qualify for U.S. protection.

BY ALFONSO CHARDY

EL PASO, Texas - Anti-Castro militant Luis Posada Carriles may not, after all, be deported to Venezuela, where he fears he would be tortured, if his plea for protection in the Unites States fails.

The judge overseeing his asylum and deportation trial in El Paso said Wednesday that on the face of it, Posada had presented enough evidence to persuade him that he could qualify for a form of U.S. protection. But Judge William Abbott said he would defer a ruling.

''He has made a prima facie case,'' Abbott said.

In addition, Posada's lawyer abruptly withdrew his application for asylum, saying that if they had pressed ahead, he might have been forced to reveal ''sensitive'' information that would have been embarrassing to the United States.

Unless Judge Abbott changes his mind, the striking development in immigration court here could allow Posada to stay in the United States -- although he could be subject to indefinite detention.

Had he won asylum, Posada could have walked free and become eligible for a green card after a year. Withholding of deportation would have also given him freedom, without a green card.

A day earlier, Posada had testified in court that he needed asylum in the United States because Cuban President Fidel Castro was persecuting him. However, the U.S. government presented evidence that Posada has lived and traveled throughout the region without encountering any persecution for 15 years. In 1990, Posada was almost killed during a failed assassination attempt in Guatemala, which he has blamed on Castro agents.

IN DETENTION

The 77-year-old exile has been held at a federal immigration detention center in El Paso since he was detained in Southwest Miami-Dade County on May 17, about two months after he sneaked into the United States across the Mexican border near Brownsville, Texas. Although born in Cuba, Posada moved to Caracas and became a naturalized Venezuelan.

He has been accused of masterminding the bombing of a Cuban jetliner in 1976 that killed 73 people off Barbados, organizing the bombing of hotels and restaurants in Cuba in 1997 that killed one person, and conspiring to assassinate Castro in Panama in 2000.

The withdrawal of the asylum application came after Posada's lead lawyer here, Matthew Archambeault, and the Department of Homeland Security's lead prosecutor, Gina Garrett-Jackson, struck an apparent compromise.

Archambeault withdrew the asylum application and conceded in court that Posada does not qualify for withholding of deportation because U.S. immigration law prohibits terror and criminal suspects from receiving either form of protection. Garrett-Jackson came close to conceding in court that the government agrees that Posada could be tortured if deported to Venezuela, although she asked Judge Abbott for time to review the situation further.

''We have serious concerns about Mr. Posada's claim to torture in Venezuela,'' Garrett-Jackson said in court Wednesday. Her statement mirrored a statement to The Herald late Tuesday by Homeland Security spokesman Russ Knocke, who said of Posada: ``We have serious and weighty concerns about the notion of a removal to Venezuela.''

Garrett-Jackson's posture in court Wednesday departed from her initial position Monday, the day the trial began, when she did not object to Abbott's decision to designate Venezuela as the country to which Posada would be deported were he to lose his petitions and all appeals. At the time, Garrett-Jackson said that Homeland Security agreed with Posada's contention that he would be tortured if deported to Cuba, but did not make the same stipulation about Venezuela.

She declined Wednesday to stipulate Venezuela, but did not rule it out -- saying Homeland Security needed time to consult with the departments of State and Justice.

''The government would like to reserve the right to take a position,'' Garrett-Jackson said in court. ``Still need time to assess the situation.''

When Judge Abbott asked Garrett-Jackson on Wednesday if she disagreed that Posada has made a ''prima facie'' case against deportation to Venezuela, she replied: ``No opinion.''

She also requested time to prepare a possible case to challenge Posada's petition to avoid deportation.

BASIS OF ARGUMENT

Posada's attorneys argue that he qualifies for the protection, known as ''deferral'' of deportation, under terms of the Convention Against Torture, widely called CAT by immigration lawyers.

While a foreign national accused of engaging in acts of terrorism or believed to have committed ''serious nonpolitical'' crimes abroad is barred from receiving asylum or withholding of deportation, he is still eligible for deferral under CAT.

Under deferral, the immigration judge orders the foreign national deported but then automatically defers the removal on the ground that he is ''more likely than not'' to be tortured if deported.

Deferral is considered a temporary protection measure, giving Homeland Security the discretion to keep the foreigner in detention until conditions in the country of removal have improved or a third country is found willing to accept the person and guarantee that he would not be tortured or turned over to the country where he could be tortured.

DEPORTATION RULE

Deferral under CAT also allows the government to deport the foreign national if it secures ''diplomatic assurances'' from the country where deportation is suspended that the person would not be tortured, Abbott said in court.

Homeland Security also has discretion under deferral to release the detainee under supervised conditions.

Archambeault said that if Posada wins deferral, his lawyers plan to ask Homeland Security to release him, or resort to federal courts to order his release.

''If Adolf Hitler applied for CAT, this court would have to grant deferral,'' Abbott said. ''Not that your client is like Hitler,'' Abbott added quickly, noting that no matter how terrible a deferral applicant's criminal or terrorist past is, it does not disqualify him from the benefit if he can show likely torture in the country to which he is expelled.

Judge Abbott set Sept. 26 as the date for the government to start its case.