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Who Qualifies for Convention Against Torture Protection?
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Understanding CAT Protection and Eligibility.
To qualify for Convention Against Torture (CAT) protection, a person must show that it is more likely than not that they would be tortured if removed to a particular country. The risk must be based on the person’s circumstances, not simply on general violence or dangerous conditions in that country.
Torture has a specific meaning under U.S. immigration law. It involves severe physical or mental pain or suffering that is intentionally inflicted for purposes such as punishment, intimidation, coercion, obtaining information, or discrimination. It must also involve a public official, either directly or through the official’s consent or acquiescence.
A CAT claim generally requires showing that:
Torture is more likely than not: There must be a sufficient likelihood that the person will face torture if removed.
The feared harm qualifies as torture: The treatment must involve severe physical or mental pain or suffering and meet the legal definition of torture.
There is a government connection: A public official or another person acting in an official capacity must carry out, direct, consent to, or acquiesce in the torture.
Unlike asylum, CAT protection does not require the feared harm to be connected to race, religion, nationality, political opinion, or membership in a particular social group.
CAT protection is generally sought in immigration proceedings when a person claims that they would face torture if removed to a particular country. The process depends on the person’s immigration circumstances, but the claim is ultimately decided by an immigration judge, with review by the Board of Immigration Appeals where applicable.
The process may include:
Request CAT protection: A person may seek CAT protection using Form I-589, Application for Asylum and for Withholding of Removal, and raise the claim in immigration court.
Submit supporting evidence: Evidence may include personal statements, medical records, witness statements, country-condition reports, human rights reports, and other information showing the risk of torture.
Present the case to an immigration judge: The applicant may testify about the harm they fear and present evidence showing why they would face torture if removed.
Establish the required government connection: The applicant must show that the feared torture would be inflicted by, at the direction of, or with the consent or acquiescence of a public official or another person acting in an official capacity.
Receive a decision: The immigration judge determines whether the applicant has shown that they are more likely than not to be tortured and, if so, which form of CAT protection applies.
CAT protection can take two forms:
Withholding of removal under CAT: This may be available when a person meets the CAT standard and is not subject to a mandatory bar to withholding.
Deferral of removal under CAT: This may be available when a person meets the CAT standard but is barred from receiving withholding of removal.
Both forms protect a person from removal to the country where they are likely to face torture. However, CAT protection does not prevent removal to another country where the person would not face torture. It also does not provide lawful permanent resident status or a direct path to a Green Card.
Meeting the CAT standard depends on the facts and evidence in each case. Immigration judges consider all relevant information when deciding whether the applicant is more likely than not to face torture if removed.
Past torture can be important evidence of future risk. However, it does not automatically establish eligibility. The judge will also consider whether current circumstances show that the applicant remains at risk.
Country-condition reports, human rights reports, news coverage, and other reliable sources can help show whether torture occurs in the country and whether people in circumstances similar to the applicant face such harm.
General evidence of torture or human rights abuses is usually not enough on its own. The applicant must connect those conditions to their own situation and explain why they personally face the required risk.
When the feared harm would come from a private person or group, evidence about how public officials respond to that conduct can be important. The applicant may need to show that officials would consent to or acquiesce in the anticipated torture.
A criminal record does not automatically prevent a person from receiving CAT protection. Certain convictions may bar withholding of removal under CAT, but someone who meets the CAT standard may still qualify for deferral of removal.
Consider speaking with an immigration attorney if you are in removal proceedings and believe you could face torture if removed to another country. Legal guidance may be particularly useful if you are unsure whether the harm you fear meets the CAT standard, have a criminal record, or need to show the required connection between the feared harm and a public official.
An attorney can also help review the evidence available to support your claim and explain whether withholding or deferral of removal may apply. If you have questions about CAT protection, consider contacting Andrew T. Thomas, Attorneys at Law.
Yes. A criminal record does not automatically prevent you from receiving CAT protection. Certain convictions may bar withholding of removal under CAT, but a person who meets the CAT standard may still qualify for deferral of removal.
No. CAT protection does not provide a Green Card or create a direct path to permanent residence. It prevents removal to a country where the person has established the required risk of torture.
Yes, in some circumstances. The torture does not have to be carried out directly by a government official. Harm by a private person or group may qualify when a public official or another person acting in an official capacity consents to or acquiesces in the torture.
Yes. CAT protection is not necessarily permanent. Withholding or deferral of removal may be terminated when the applicable legal requirements for ending that protection are met.
No. CAT protection does not provide derivative protection to family members. Each person seeking CAT protection must independently establish that they meet the requirements.
