Convention Against Torture

    The United States is a party to the United Nations’ Convention Against Torture and and Other Cruel, Inhumane or Degrading Treatment of Punishment.

    This means that if you can prove that you will be tortured upon your return to your home country, then the United States cannot and will not deport you.

    RELIEF FROM REMOVAL UNDER THE CONVENTION AGAINST TORTURE

    To obtain relief from removal under the Convention Against Torture (CAT), the applicant must demonstrate that it is “more likely than not” that an alien will be subjected to torture, meaning infliction of extreme physical or mental pain by a government official.

    The six basic elements of torture are:

    1. An intentional act;
    2. Infliction of severe pain or suffering;
    3. Under the custody or control of the offender;
    4. For a broad array of wrongful purposes;
    5. By or sanctioned by a public official; and
    6. Not arising out of lawful sanctions.

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    This relief is only available to those individuals who are subject to removal procedures: unlike asylum, an individual cannot apply affirmatively for this relief and it cannot be granted at the administrative level: only an immigration judge, the Board of Immigration Appeals, or a Federal court can grant relief under the Convention Against Torture.

    The standard is higher than that for asylum or withholding as the individual must fear torture, rather than persecution.

    If the individual can establish “substantial grounds for believing he or she would be in danger of being subjected to torture”, there are two distinct forms of relief available under CAT:

    Withholding of Removal Under CAT

    Relief under the Convention Against Torture is similar to regular withholding of removal.

    Thus, the CAT applicant cannot pursue permanent residence and cannot travel outside of the United States.

    Deferral of Removal Under CAT

    There are no mandatory bars to relief here; however, a grant of deferral can be more easily terminated than any other form of relief.

    In addition, a person granted deferral may be held in detention and is not entitled to employment authorization.

    However, the U.S. Immigration and Customs Enforcement (ICE) can release the individual, and the U.S. Citizenship and Immigration Services (USCIS) can issue employment authorization.

    Relief under the Convention Against Torture does not allow the individual to apply for adjustment of status to permanent residency, and it does not confer status on his or her spouse or children.

    However, CAT is available where there are bars to withholding of removal and asylum, e.g. where the individual has a criminal conviction or other bar.

    It is also available where the individual is unable to establish that persecution is on account of one of the five protected grounds.

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