Application for Relief under Convention Against Torture

Article 3 of the United Nations Convention Against Torture (CAT) states that “No State party shall expel, return, (‘refouler’) or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture.”

CAT in U.S. Immigration Laws

The U.S. government has also adopted the policy of CAT to different extent in several areas of law.  In terms of immigration law, the U.S. has implemented regulations which protect individuals from torture and other inhuman treatment in their home country.  A foreigner who is subject to removal from the U.S. may apply for relief under CAT if “it is more likely than not that he or she would be tortured if removed to the proposed country of removal.”  If found to be eligible for CAT relief, the applicant may be eligible for withholding of removal from the U.S.  A grant of CAT relief does not confer permanent lawful status to the applicant.  It does allow the person to live and work in the U.S.

Application for CAT Relief

A person may apply for CAT relief in deportation proceedings by filing an application for political asylum using Form I-589.  An immigration judge will decide whether the person is eligible for CAT and withholding of removal.  However, it is important to note the difference between CAT and “regular” political asylum / withholding of removal application. The former focuses on whether a person will be subject to torture while the later reviews whether the applicant has or will suffer persecution based on one of the five grounds: race, religion, nationality, membership in a particular social ground, or political opinion.  The burden of proof is on the applicant to prove its claim of torture.  The testimony of the applicant alone, if credible, may be sufficient to sustain the burden without corroboration. 

Significance of CAT Relief

The changes in immigration law since 1996 have substantially reduced the relief available to foreigners who have criminal conviction.  The elimination of the 212(c) relief meant that a long-time U.S. resident would have to be deported even though he or she might have family members who are U.S. citizens and / or residents.  Many of them are not eligible to apply for any relief in the immigration court.  The adoption of Article 3 of the UN CAT in 1999 has provided new hope for a criminal alien to stay in the U.S. if he or she establishes that “it is more likely than not that he or she would be tortured” for any reason if deported to his or her country of original.   Nationals of countries which practice torture against their people may now apply for CAT protection. 

Limitations of CAT Protection

However, there are limits to CAT relief.  For example, aliens who have committed certain “particularly serous crimes” are barred from getting CAT relief.  Even if they have established that deportation would likely to subject them to torture, they will only be granted “Deferral of Removal” – which offers less protection for the alien.  If the person is already detained, a grant of deferral of removal would not allow the person to be released from custody.  Furthermore, the government may petition to remove the deferral status if there are changes in circumstances. 

What constitutes Torture under CAT?

The regulations define torture by five elements:

 (1) the act must cause severe physical or mental pain or suffering; (2) the act must be intentionally inflicted; (3) the act must be inflicted for a proscribed purpose; (4) the act must be inflicted by or at the instigation of or with the consent or acquiescence of a public official who has custody or physical control of the victim; and (5) the act cannot arise from lawful sanctions.

It is important to note that both physical and mental sufferings are included, and the suffering must be of a severe nature.  For examples, sleep deprivation for prolonged periods, serious threads such as death threats, sounding of loud music for prolonged periods, and restraining in very painful conditions can all constitute “torture” under CAT.  Other violations of the body such as beating, raping, electric shocking, involuntary sterilization and abortions, etc, also constitute torture. 

Only acts inflicted by or instigated by public officials are covered.  So, if a person fears torturous acts by private parties such as criminal gangs, he or she may not claim CAT protection.  However, if the government is aware of the torture but does not act to stop it, CAT protection is available.  In fact, the Federal Courts have ruled that if the government authorities either knew or turned a “blind eye” towards torturous acts by third parties, but did nothing to prevent or stop the acts, acquiescence exists and the definition of CAT torture is met.  Examples of these third parties acts include threats and acts of smugglers or snakeheads, guerillas’ torturous activities, and other criminal acts. 

Proving a CAT Claim

To prove a CAT claim, the applicant must present evidence that shows that he is more likely than not that he or she would be subject to torture if removed to the country of deportation.  Evidence that will be considered include evidence of past torture inflicted upon the applicant; evidence that the applicant could not relocate to another part of the country to avoid torture; evidence of gross, flagrant or mass violations of human rights within the country of removal; and other relevant information regarding conditions in the country of removal.  Expert testimonies are extremely helpful to explain the current situation of the country and how the applicant will be treated upon his return. 

If the immigration judge determines that the applicant is more likely than not to be tortured in the country of removal, the applicant is entitled to “Withholding of Removal” unless the judge determines the CAT applicant must be denied under the law because of certain reasons.  A person who is granted “Withholding of Removal” is allowed to stay and work legally in the U.S. but will not be issued a green card.  Furthermore, the U.S. government will not deport him or her to the country from which removal was withheld, and the applicant should not return to such a country.  If he returns to the country, the U.S. government may view that as an action in contradiction of the claim of torture and cancel the grant of CAT relief. 

Even if the applicant has evidence to prove possible torture, the immigration judge must deny the applicant under the law if the applicant has committed a “particularly serious crime” inside or outside of the United States, persecuted other people, engaged in terrorist activities, or is a danger to national security.  Under the current immigration statute, a person who has been convicted of an “aggravated felony” and sentenced to at least five years of sentence is presumed to have committed a “particularly serious crime.”  The applicant must present evidence to rebut such a presumption.  If an applicant is not eligible for “Withholding of Removal” under the law, as stated above, the immigrant judge may still grant “Deferral of Removal” to the person. 

Conclusion

Foreigners who fear torturous or inhuman treatment from their countries of origin for any reasons should consider applying for CAT relief.  CAT relief is not easy to obtain but may possibly be the relief of last resort for those who have a criminal background. 

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(Note:  All discussions posted on this website are meant to be general information only and do not constitute legal advice.  Immigration laws and regulations change on a daily basis.  Any and all information posted on this website could become outdated.  Because each person's immigration history and legal needs are unique, the reader should consult a qualified immigration attorney for legal advice.  Please also see our DISCLAIMERS.)

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