Relief from Deportation Under the Torture Convention

The United States Department of Justice has finally implemented new regulations governing the United States’ participation in the “Convention Against Torture,” (“CAT”). Under the new regulations, people in Deportation (Removal) Proceedings may seek “withholding” or “deferral” of their removal if they fear “torture” in their homeland. The regulations will also allow people who were previously ordered deported to “reopen” their cases to apply for relief, marking one of the few occasions in recent years where the Government has expanded the forms of relief deportable aliens may seek.

Although the United States has been a signatory to the CAT since 1994, the INS only considered claims at the end of the removal process, when all other claims had been exhausted. The new rule gives Immigration Judges jurisdiction to grant withholding or deferral of removal to any alien who can show that it is “more likely than not that he will be tortured.” The regulations define “torture” “an act causing severe pain or suffering, whether physical or mental, intentionally inflicted on a person, by or at the instigation of or with the consent or acquiescence of a public official or person acting in an official capacity.”

In many ways, the CAT relief is similar to asylum, and individuals may make both claims before the Immigration Court. The CAT differs from asylum, however, in that a successful applicant need not attribute a motive to his torturer. Torture for any reason can qualify someone for relief. The standard of proof, i.e. “that torture is “more likely than not” to occur, is higher than the standard for asylum, which requires only that “persecution” be a “reasonable possibility.” Unlike asylum, the successful CAT applicant cannot file for a green card after one year. Additionally, some bars to asylum such as a criminal history, will not bar an applicant from relief under the CAT. Even serious criminals can have their removal “deferred” indefinitely based on a claim of torture.

For individuals who never had a CAT claim adjudicated, there is a procedure to provide a reasonable opportunity present a case. Even if an individual was previously ordered deported, or filed an appeal of a denial of asylum or other relief, he may apply under the CAT. The regulations created a 90 day window to file a “motion to reopen” any prior deportation or removal case in order to apply for CAT. The deadline for filing such a motion is June 21, 1999.