Apart from political asylum, the UN Convention Against Torture ("CAT") is probably the most important protection from removal that refugees have in the US (it is only of use to refugees in the US because the US government, when it signed the Convention, entered into reservations that rendered every other provision, including a right to sue government officials for damages for torture, inoperative). The Convention is particularly important because, in some ways, it is much easier to show eligibility for CAT protection than it is to show eligibility for asylum.

The implementing regulations for the Convention Against Torture provide as follows:

§ 208.16(c) Eligibility for withholding of removal under the Convention Against Torture

{...}

(2) The burden of proof is on the applicant for withholding of removal under this paragraph to establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal. The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.

(3) In assessing whether it is more likely than not that an applicant would be tortured in the proposed country of removal, all evidence relevant to the possibility of future torture shall be considered, including, but not limited to:

(i) Evidence of past torture inflicted upon the applicant;

(ii) Evidence that the applicant could relocate to a part of the country of removal where he or she is not likely to be tortured;

(iii) Evidence of gross, flagrant or mass violations of human rights within the country of removal, where applicable; and

(iv) Other relevant information regarding conditions in the country of removal.

(4) In considering an application for withholding of removal under the Convention Against Torture, the immigration judge shall first determine whether the alien is more likely than not to be tortured in the country of removal. If the immigration judge determines that the alien is more likely than not to be tortured in the country of removal, the alien is entitled to protection under the Convention Against Torture. Protection under the Convention Against Torture will be granted either in the form of withholding of removal or in the form of deferral of removal. An alien entitled to such protection shall be granted withholding of removal unless the alien is subject to mandatory denial of withholding of removal under paragraphs (d)(2) or (d)(3) of this section. {...}

(d) Approval or denial of application. (1) General. Subject to paragraphs (d)(2) and (d)(3) of this section, an application for withholding of deportation or removal to a country of proposed removal shall be granted if the applicant's eligibility for withholding is established pursuant to paragraphs (b) or (c) of this section.

{...} (e) Reconsideration of discretionary denial of asylum. In the event that an applicant is denied asylum solely in the exercise of discretion, and the applicant is subsequently granted withholding of deportation or removal under this section, thereby effectively precluding admission of the applicant's spouse or minor children following to join him or her, the denial of asylum shall be reconsidered. Factors to be considered will include the reasons for the denial and reasonable alternatives available to the applicant such as reunification with his or her spouse or minor children in a third country.

(f)Removal to third country.Nothing in this section or § 208.17 shall prevent the Service from removing an alien to a third country other than the country to which removal has been withheld or deferred.



What is the advantage of CAT protection?

As described in greater detail in Woldemeskel v. INS, asylum is available for people who have suffered persecution or have reason to fear future persecution only on account of certain specific grounds: race, religion, political opinion, or "membership in a particular social group" (a sort of catch-all for people who are being persecuted for family membership or because of a characteristic not specifically listed). This tends to offset the relaxed burden of proof, which does not require applicants to prove that it is "more likely than not" that they will be persecuted.

However, it's pretty safe to say that most states from which people seek refuge from persecution (even of the variety that doesn't satisfy US immigration judges) also engage in some form or other of torture. The implementing regulations don't require that the fear of torture be on account of some specific characteristic, as is the case with asylum. Thus, while someone who is afraid to return to her country because she will likely be incarcerated for some non-political crime most likely is not eligible for asylum, she still may be eligible for protection under the Convention Against Torture.

This less strict approach to defining the facts that will give rise to a claim to CAT protection is made even more favourable to those seeking protection by the specific mandatory provisions ("shall") of the regulations, which require consideration of "all evidence relevant to the possibility of future torture." While "evidence of past torture inflicted upon the applicant" is one factor to consider, it is only one of several. Unlike the applicable regulations for asylum, the CAT regulations specifically require a broader view of the evidence, including "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." 8 C.F.R. ยง 208.16(c)(3)(iii),(iv) The breadth of the relevant evidence for a CAT claim led the Ninth Circuit to remark in its seminal case on the Convention that "country conditions alone can play a decisive role in granting relief under the Convention," Kamalthas v. INS, 251 F.3d 1279, 1280 (9th Cir. 2001).

There is another advantage, particularly when filing a petition for review of the INS denial of claims for asylum and CAT protection. While the case law on the Convention is rather thin at the moment, the courts that have considered the issue (particularly the Ninth Circuit) have held that the INS must consider a CAT claim separately from an asylum/withholding claim because of the differing evidentiary framework. Evidence that might not cut it for asylum may very well be decisive for protection under the Convention Against Torture. Thus, if the immigration judge or the BIA comes up with a half-assed denial of CAT protection as an afterthought to the denial of asylum (along the lines of "for the same reasons, the respondent has failed to show eligibility for protection under the CAT"), this can be an additional ground for reversal and remand. And, since CAT protection is completely independent from asylum, even if the Court of Appeals agrees that an alien is not eligible for asylum (or at least that there is substantial evidence in the record to support the finding that the alien is ineligible), a reversal is still possible under the CAT.

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