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.”)
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), and this form of relief provides more limited benefits than asylum does, there are advantages to applying for it:
There is no formal application to file in order to apply for CAT protection. You can apply for CAT protection 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.
Note that if you did not apply for CAT protection when you filed your asylum application, 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.
In contrast to asylum claims, the main advantage of CAT protection is that none of the bars to asylum (see “Bars to Receiving Asylum or Refugee Status”) can prevent you from being granted CAT relief. Moreover, the torture you would face in your country of origin does not have to be on account of one of the five protected grounds.
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 can 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.
To qualify for protection under CAT, you have to 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 any 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. To qualify for CAT protection, 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.
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 anextreme 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.