Relief under the Convention Against Torture (CAT) is the third form of relief an individual fearing persecution can seek. Like withholding of removal, it can only be granted by an Immigration Judge (IJ), and not by an Asylum Officer.
An applicant bears the burden of demonstrating that it is more likely than not that they will be tortured if removed to their country of origin. 1 The Board of Immigration Appeals (BIA) has found that torture “must be an extreme form of cruel and inhuman punishment” that “must cause severe pain or suffering.” 2 There are no bars to eligibility for relief under CAT.
The advantage of CAT is that there are no bars to eligibility. Therefore, since the treaty itself does not contain any bars to its mandate of non-return, aggravated felons can make claims for relief if they fear torture. Additionally, applicants are not required to establish that their fear of torture is on account of race, religion, nationality, political opinion, or membership in a particular social group.
Immigration regulations create two separate types of protection under CAT. 3 The first type of protection is another form of withholding of removal under CAT. Withholding of removal under CAT prohibits the return of an individual to their home country. This status can only be terminated if the individual’s case is reopened and if the DHS establishes that they are no longer likely to be tortured in their home country.
The second type of protection is called deferral of removal under CAT. Deferral of removal under CAT is a more temporary form of relief. Deferral of removal under CAT is appropriate for individuals who would likely be subjected to torture, but who are ineligible for withholding of removal, such as persecutors, terrorists, and certain criminals. This status can be terminated more quickly and easily than withholding of removal if the individual is no longer likely to be tortured if forced to return to their home country. Additionally, an individual granted deferral of removal under CAT may be detained by the DHS if they are deemed to be a threat to the community.
Like regular withholding of removal, the benefits to both forms of CAT relief are limited. An individual who is successful under a CAT claim cannot be removed from the United States to the country from which they fled persecution, but they can be removed to a third country if one is available. An individual granted CAT cannot adjust their status to legal permanent resident, but can obtain work authorization.
7.1 Definition of Torture
Torture is defined as:
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind … when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in official capacity. 4
The BIA has interpreted the definition of torture and further defined torture to be “an extreme form of cruel and inhuman punishment and does not extend to lesser forms of cruel, inhuman, or degrading treatment or punishment.” 5 The BIA has also found that indefinite detention, without further proof of torture, does not constitute torture under this definition. 6
The torture feared must be carried out by their government or someone acting with the acquiescence of the government. Acquiescence has been narrowly defined and generally must include awareness of the torture and failure to intervene thereby breaching a legal responsibility. 7 The Ninth Circuit has taken a somewhat more expansive view of government acquiescence. In Reyes-Reyes v. Ashcroft, the Court found that “acquiescence” can include “willful blindness” by government officials so that the applicant is not required to prove “actual knowledge.” 8
7.2 Proof of Torture
The standard of proof under the CAT is higher than the standard for asylum. The applicant must prove that it is “more likely than not” that they would be tortured if forced to return to their country. 9 The evidentiary proof for torture is very similar to the proof for asylum or withholding claims. As with asylum and withholding claims, the Court will look for a consistent pattern of “gross, flagrant or mass violations of human rights.” 10
7.3 Procedure for Raising CAT Claims
Individuals seeking relief under the CAT must bring their claims before an IJ. The procedure for filing a claim under CAT will differ depending on certain factors, including the status of an individual’s case. If the applicant is filing for asylum, they should request relief under withholding of removal and CAT in their Form I-589 and should include the following information:
- The type of torture they are likely to experience if forced to return to her country;
- Any past instances of torture that they have experienced;
- Any past instances of torture experienced by close family members and associates; and
- Documentary support showing related human rights abuses by the government of their country, such as the U.S. State Department’s Human Rights Country Reports, Amnesty International Reports, Human Rights Watch reports, and reports from other human rights monitoring groups.
If the applicant has already filed for asylum, but did not mention withholding of removal and CAT, they should supplement the application with the above information.
Remember that relief under CAT is not as beneficial as asylum or withholding. It is generally only applicants with serious criminal convictions who benefit from CAT relief. Thus, while most applicants file for asylum, withholding and CAT in the alternative, unless the applicant is statutorily ineligible for asylum or withholding, it is unlikely that the CAT claim will be a major part of their case.
7.4 LGBTQ/H CAT Cases
While the regulations state that under CAT, torture is severe pain or suffering “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity,” 11 the Ninth Circuit has taken a broader view. In the case of Reyes-Reyes v. Ashcroft 12 the Court found that “acquiescence” by the government included not addressing severe physical abuse inflicted by non-governmental actors. The case involved a transgender woman who was kidnapped, severely beaten, and raped by a group of men. In addition, she was also threatened by her abusers and feared retaliation if she reported the crimes. The court remanded the case for a reevaluation of both the CAT and the withholding of removal claims, finding that the IJ had misapplied the requirement for government involvement.
7.5 HIV and CAT
There have been at least two unpublished cases where attorneys have successfully demonstrated that an applicant living with HIV who would be jailed upon being returned to his country of origin, met the standard for CAT relief. In those cases, the IJs found that prison conditions in the applicants’ countries of origin, Haiti and Cuba, were so atrocious that the applicant would likely die shortly after returning to his country. In the Haitian case, the applicant faced mandatory detention in Haiti because he would have been a criminal deportee. In the Cuban case, the applicant had deserted the Cuban army because he refused to serve in Angola, and therefore would have faced imprisonment.
This Manual is intended to provide information to attorneys and accredited representatives. It is not intended as legal advice. Asylum seekers should speak with qualified attorneys before applying.
- In re J-E-, 23 I. & N. Dec. 291, 302 (BIA 2002). ↩
- Id. at 297. ↩
- See 8 C.F.R. §§ 208.16 & 208.17. ↩
- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 1., Dec.10 1984, 1465 U.N.T.S. 85 [hereinafter CAT], Art. 1., 8 C.F.R. § 208.18. ↩
- In re J-E-, 23 I. & N. Dec. at 305 (Schmidt, J., dissenting). ↩
- Id.at 300. ↩
- Matter of S- V-.,I. & N. Dec. 1306, 1311-1312 (BIA 2000). ↩
- 384 F.3d 782,at 787 (9th Cir. 2004). ↩
- In re G-A-, 23 I. & N. Dec. 366, 367 (BIA 2002). ↩
- Id. at 368. ↩
- 8 C.F.R. § 208.18(a)(1). ↩
- 384 F.3d 782, 787 (9th Cir. 2004). ↩