As per international and U.S. law, the principle is clear that an individual cannot be returned to a country where they are likely to be subjected to torture. US law has created a legal process specifically designed to comply with the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (commonly known as “CAT” or “the Convention”) obligates countries that are signatories to condemn and prohibit torture.
Article III of the Convention explicitly states that a signatory nation is prohibited from “expelling, returning, or extraditing” an individual to a country where there exist “substantial grounds for believing that he would be in danger of being subjected to torture.”
The United States joined CAT in 1988, with Congress ratifying the treaty in 1994. In 1998, the U.S. officially declared its intent to implement CAT as part of the Foreign Affairs Reform and Restructuring Act (“FARRA”). In 1999, the former Immigration and Naturalization Service established regulations that outline the standards and procedures for protection under the Convention. These regulations are detailed in 8 C.F.R. §§ [1]208.16 to [1]208.18.
Protection under Article III of the Convention serves as a crucial option for noncitizens who do not meet the prerequisites for asylum but can demonstrate that they would face torture if they were to return to their home country. Importantly, relief under the Convention is not a matter of discretion. For those individuals who meet the eligibility requirements, it is mandatory for the immigration judge (IJ) to grant them protection.
What Is Considered Torture?
The regulations contain a definition of torture and list the types of acts that constitute torture.
8 CFR § 1208.18(a)(1) provides:
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 her or a third
person information or a confession, punishing him or her for an act he or she or a third person
has committed or is suspected of having committed, or intimidating or coercing him or her 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 an official capacity.
That statute denotes three essential elements for torture:
(1) the intentional infliction, (2) of severe pain and suffering (physical or mental), (3) committed by or at the acquiescence of the government.
The regulation goes on to provide the following limitations to the definition:
- Torture is an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment that do not amount to torture.
- Torture does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
- Lawful sanctions include judicially imposed sanctions and other enforcement actions authorized by law, including the death penalty, but do not include sanctions that defeat the object and purpose of the Convention Against Torture to prohibit torture.
- In order to constitute torture, mental pain or suffering must be prolonged mental harm caused by or resulting from:
- The intentional infliction or threatened infliction of severe physical pain or suffering;
- The administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
- The threat of imminent death; or
- The threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the sense or personality.
The act of torture “must be specifically intended to inflict severe physical or mental pain or suffering” and “an act that results in unanticipated or unintended severity of pain and suffering is not torture.”
The regulations state that to qualify for protection under CAT, the torture must be “specifically intended to inflict severe physical or mental pain or suffering.”
Government Actor or Government Acquiescence
Applicants seeking CAT (Convention Against Torture) relief are required to establish that the torture they are at risk of experiencing will be perpetrated “by or at the instigation of or with the consent or acquiescence of a public official or another person acting in an official capacity.” When the torturer’s actions are clearly linked to an official governmental policy or a consistent pattern of behavior, indicating that they are acting in their official capacity, it constitutes an unmistakable case of an official act.
However, situations may arise where a lower-level government employee engages in acts of torture without explicit authorization from the government.
“‘[r]ogue officers’ or ‘rogue officials’ are public officials who act outside of their official capacity, or, in other words, not under color of law.” Matter of O-F-A-S-, 27 I&N Dec. 709, 713–14 (BIA 2019).
How Does A Respondent Prove Torture for CAT Protection?
Applicants may present various types of evidence to support their claim:
- Documentation: Any available documents or records that tie the torturous act to a government entity or indicate government knowledge or involvement should be submitted. This might include official reports, memos, or correspondence.
- Witness Testimony: Statements from witnesses who can attest to the involvement or knowledge of government officials or their acquiescence can be crucial. These witnesses may include individuals who observed the act or have relevant information about the situation.
- Expert Testimony: Expert witnesses, such as human rights experts or scholars, can provide their analysis of the situation to establish that the act was conducted with government involvement or acquiescence. Their testimony can help clarify complex situations.
- Country Conditions Reports: Reports on the country conditions, published by credible sources or government agencies, may provide information about a pattern of governmental involvement in or tolerance of torture, which can support the applicant’s case.
- Corroborating Evidence: Any additional evidence that supports the applicant’s claim, such as medical reports documenting injuries resulting from torture, can be valuable in establishing the nature and extent of the harm.
It’s important to note that the burden of proof lies with the applicant.
Relocation
Unlike the asylum and withholding of removal regulations, the CAT regulations do not state that the applicant must only prove that internal relocation would not be reasonable. At the same time, the regulations do not require a showing that the applicant could not live safely elsewhere in the country. The Ninth Circuit has clarified that an applicant for CAT need not prove that relocation within the country of removal is “impossible.” Instead, “the IJ must consider all relevant evidence” and “no one factor is determinative.” But it is the applicant’s burden to prove a likelihood that they will be tortured if removed, so whether internal relocation is a possibility is part of that inquiry. The Second Circuit recently took the same position, pointing out that the regulations “do not require an applicant to prove that it is not possible to relocate to a different area of the country in order to evade torture.”
How Does Someone Apply For CAT Protection?
As of April 1, 1997, asylum applications are also subject to evaluation for eligibility for withholding of removal under the Convention Against Torture (CAT) if the applicant either requests such consideration or if the evidence presented suggests that the applicant may be subjected to torture in the country of removal. The same application form, Form I-589, is used for both asylum and withholding of removal, and it is also the form used for CAT relief. While it is possible to apply solely for CAT using Form I-589, applicants typically use the form to request all three forms of relief unless there is a clear bar to asylum and withholding. An applicant is considered for CAT relief by checking the “Torture Convention” box in the I-589 form.
For CAT relief, an applicant must demonstrate that “it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” This standard is defined as a probability greater than fifty percent. It’s important to note that the testimony of the applicant, if found credible, can suffice to meet the burden of proof without the need for corroboration. Simultaneously, country conditions evidence can also be adequate to establish the applicant’s burden of proof, even when the applicant’s credibility is not established.
The regulations stipulate that the immigration judge must consider “all evidence relevant to the possibility of future torture.” Unlike asylum and withholding of removal, CAT protection applicants are not required to categorize their evidence in terms of separate grounds for CAT relief. Instead, CAT claims must be evaluated in the context of the cumulative risk of torture from all potential sources, and they should not be treated as distinct or divisible CAT claims. In cases where torture is likely to occur for various reasons, the applicant must prove that each element in a hypothetical chain of events is more likely than not to transpire.
The Immigration Judge must consider the following when determining the possibility of future torture:
- Evidence of past torture but unlike with persecution in the asylum and withholding of removal contexts, past torture doesn’t give a presumption of future torture.;
- Evidence that the applicant could relocate to a part of the country of removal where he or she is not
likely to be tortured; - Evidence of gross, flagrant or mass violations of human rights within the country of removal, where
applicable; and - Other relevant information regarding conditions in the country of removal. 8 CFR §§ 1208.16(c)(3)(i) – (iv).
As with asylum and withholding of removal, credible testimony alone can be sufficient to prove eligibility for CAT. However, all available corroboration should be submitted in order to prove all elements of the claim as well as to boost credibility. So, in addition to the I-589 form and a detailed declaration, applicants should submit identity documents from their native country, any proof of harm including witness statements and medical records, and country conditions evidence.
What Are The Benefits of Being Granted CAT?
It’s essential to clarify that CAT relief does not confer lawful immigration status or offer a pathway to permanent residency. Instead, it serves to prevent the deportation of the applicant to the specific country or countries from which removal has been withheld or deferred. In other words, it provides protection from returning to a country where torture is likely to occur.
Following a CAT grant, if another country is willing to accept the individual, they can be deported to that country. Individuals granted CAT protection are eligible to apply for a work permit. There exists a distinct work authorization category for those who have been granted withholding of removal under CAT.
In the case of individuals granted deferral of removal under CAT, they can request a work permit once they are released from the custody of the Department of Homeland Security (DHS). This falls under the same category used by individuals with final removal orders who are released on an order of supervision.
While CAT protection allows foreign nationals to reside lawfully in the United States, it does not provide any means for family members to obtain lawful status or access other benefits through the CAT grant.