How to Apply for CAT Protection Without Also Applying for Asylum

How to request Convention Against Torture protection from the Immigration Judge.

Convention Against Torture (CAT) protection is a defensive form of relief from removal or deportation. When you apply for CAT, you are seeking protection under the United Nations (UN) Convention Against Torture. You can only apply for CAT relief if you are in removal proceedings in Immigration Court. As a matter of practice, CAT is usually requested along with asylum and withholding of removal but it can be requested independently if you don’t have a claim for asylum.

To learn more about the differences between asylum, withholding of removal, and CAT protection, see Nolo’s article “Difference in Asylum, Withholding of Removal, and Protection Under the Convention Against Torture.” This article will provide guidance about how to request CAT relief without first requesting asylum or withholding of removal.

How to Apply for CAT Protection in Immigration Court

The usual reason that people apply for CAT protection by itself is because they will not qualify for asylum, perhaps due to the fact that they do not fear persecution based upon one of the five protected grounds: race, religion, nationality, political opinion, or membership in a particular social group. Or there may be issues in their past that bar them from seeking asylum relief.

In order to apply for CAT protection, you need to submit written pleadings to the Immigration Court requesting CAT protection and any other form of relief for which you qualify and would like to apply. Even if you are not requesting asylum or withholding of removal, you will still need to file  Form I-589, Application for Asylum and Withholding of Removal with the Court by the deadline that the Immigration Judge (IJ) gives you.

On the first page and on page 5 of the I-589, check the boxes that indicate “Convention Against Torture” and “Torture Convention” to show that you are solely requesting CAT protection. You will file the application together with all documentary evidence that supports your claim and corroborates the testimony that you will be presenting during your individual hearing in Immigration Court.

What Documents to Submit to Support Your CAT Case

The documents that support an application for CAT relief are essentially the same as those one would provide in connection with an application for asylum and/or withholding of removal. These typically include: medical records, police reports, newspaper articles, expert testimony such as psychological evaluations, witness testimony, affidavits and declarations, and reputable general country conditions reports such the ones published by the Department of State, Human Rights Watch, or Amnesty International.

For more detailed information about supporting documents, see Nolo's article, “Preparing Persuasive Documents for Your Asylum Application.”

How to Prove a CAT Claim in Immigration Court

To meet the requirements for CAT, you must show to the Immigration Court that “it is more likely than not” that:

  1. You will be tortured in the proposed country of removal , and
  2. The torture will be inflicted or instigated by or with the consent or acquiescence of a government official or a person acting in an official capacity.

“It is more likely than not” means that there is greater than a 50% probability that you will be tortured. Torture can include physical beatings, rape, threats against family or loved ones, or being deprived of the basic necessities of life.

The key point to remember is that for a specific act to qualify as torture under CAT, it has to be an extreme and inhuman form of physical or psychological harm inflicted with consent or acquiescence of the government. Thus, a minor and isolated physical beating will probably not qualify because the probability of it happening to you again may not be very high.

What constitutes governmental “acquiescence” has been the subject of much litigation, but the consensus is moving towards defining this term as not only  actual knowledge  of the torture but also  willful blindness  towards it.  So, if the government is aware of the torture but is either unable to prevent it or ignores the activity, then most likely, the IJ will determine that the government essentially sanctioned the torture.

What Benefits CAT Relief Bring You

Obtaining CAT relief allows you to avoid being removed to your home country, but it does not make you eligible for a green card or U.S. citizenship. Also, if you travel outside the U.S., you risk losing protection under CAT. In addition, your family members cannot receive derivative CAT protection through you unless they individually qualify and request CAT protection from the Immigration Court.

One advantage of CAT is that it is a  mandatory  form of relief. If you meet the requirements, the IJ  must  grant your application even if you have criminal convictions or other factors that would normally disqualify you from any discretionary form of relief such as cancellation of removal or asylum. Because of this, CAT usually benefits people who have serious criminal convictions in their past or those who are cannot establish that the persecution they fear is on account of one of the five protected grounds.

If your application is granted, you will be awarded either withholding of removal or deferral of removal under CAT. This means that the U.S. government cannot send you back to your home country, but officials can attempt to resettle you in a third country where there is no likelihood of torture, if that third country agrees to accept you.

Also, CAT protection can be terminated at any time in the future if the circumstances in your home country change and the U.S. government can prove that you are no longer at risk of torture.

If you are awarded withholding of removal under CAT, you are eligible to be released from government custody (if you are currently detained) and you can apply for work authorization. Persecutors, terrorists, and certain criminals are not eligible for withholding of removal. If you are found to be a persecutor, a terrorist, or if you committed certain specific crimes, you will be granted deferral of removal under CAT and you may be required to remain in government custody if you are considered to be a public safety risk.

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