If you are physically present in the U.S., and are applying for asylum, you should also apply for protection under the United Nations Convention Against Torture ("CAT") if you fear torture in your country of origin. CAT protection prohibits the U.S. government from returning you to any country where substantial grounds exist for believing that you would be in danger of being tortured.
(For a discussion of all three forms of relief that might be available to you, see "Differences Between Asylum Withholding of Removal, and Protection Under Convention Against Torture.")
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Although the requirements to be granted CAT protection are higher than those for asylum (you need to prove that it is more likely than not that you would be tortured in your home country), and CAT relief provides more limited benefits than asylum does, there are important positive aspects to applying for it:
However, CAT protection offers fewer benefits than asylum. Most importantly, it does not prevent you from being removed by the U.S. government to a safe third country. In other words, if another country where you would not face torture is willing to take you, the U.S. government could send you there.
Also, CAT protection may be terminated if you are no longer at risk of torture in your country of origin. If the Department of Homeland Security ("DHS") believes that it is safe for you to go back, DHS can start a new case in immigration court to try to convince an Immigration Judge ("IJ") that you should be sent back.
Moreover, CAT protection does not make you eligible for a green card or naturalization, and it does not provide any rights to your family members as asylum does.
There is no formal application used to file for CAT protection. You can apply at the same time as you apply for asylum, using the same Form I-589 "Application for Asylum and Withholding of Removal." Just make sure to mark off the relevant boxes in Part B of the form, and to include information and supporting documents relevant to the requirements for obtaining CAT protection.
If you did not apply for CAT protection when you earlier filed your I-589, you can add a request for CAT later (by "supplementing" your asylum application). There is no time deadline during which you must apply for CAT protection. In fact, you can ask for CAT protection even after a final order of deportation or removal has been issued against you.
If you apply for asylum affirmatively, the Asylum Office will be the first to consider your case. If doesn't have the power to grant CAT protection. Thus if it doesn't grant your request for asylum, it will refer you to immigration court for deportation proceedings (assuming you have no existing right to remain in the United States). There, the Immigration Judge (IJ) can consider and possibly grant your CAT claim.
To qualify for protection under CAT, you must show that it is more likely than not that you would be tortured if removed to the country from which you are claiming protection.
The harm you fear must meet the definition of "torture" under the CAT. That is, it must be intentional unlawful infliction of severe (physical or mental) suffering or pain, with consent of a public official, for purposes such as punishment, obtaining a confession, intimidation, or discrimination. The torture must be done by, at the request of your government, or with the permission or agreement of your government. You must be unable to get away from your torturer.
More literally, torture can include many different types of harm, such as rape, electric shock, being forced to take drugs or other substances, being deprived of food or water, physical beatings, and threats of such harm.
CAT protection is a mandatory form of relief. That is, the IJ must grant you CAT protection if you meet all of the required elements. The IJ cannot consider any subjective or discretionary factors to deny you this form of relief. Simply put, the U.S. government cannot return you to a country where there are substantial reasons for believing that you would be in danger of being tortured.
The test for obtaining CAT protection is objective. You need to submit objective evidence, such as country-reports and news articles, indicating that you are more likely than not to be tortured.
To show that you fear torture, you must provide information that corroborates that you would face an extreme form of cruel and inhuman punishment. Although many types of punishment can constitute torture, it has to be extreme. Indefinite detention, for example, does not constitute torture.
You must prove that it is more likely than not that you would be tortured if forced to return. The evidence you can use is similar to the type of supporting documents and information you should submit with your asylum claim (see Preparing Persuasive Documents for Your Asylum Application).
The IJ will consider your personal circumstances and your government's patterns of violations of human rights. Specifically, you need to provide information and documentary evidence about:
Note that any torture you have suffered in the past is merely a relevant factor. Unlike with an asylum claim, past torture does not automatically lead to a grant of CAT. That is because the goal of CAT relief is to prevent your torture in the future. Therefore, you must focus on showing what torture you would be more likely than not to suffer in the future.
Determining eligibility and applying for asylum status or CAT protection isn't easy. Start by talking with an experienced immigration attorney, if possible. Some nonprofit organizations will provide free or low-cost attorneys to low-income applicants. Also see How to Get a Lawyer to Represent You Pro Bono (Free) in Immigration Court Removal Proceedings.
Need a lawyer? Start here.