In thinking about torture, the traditional image is severe harm inflicted in order to intimidate, gain information, or serve other governmental ends. However, a recent case from the San Diego Immigration Court (on remand from the Board of Immigration Appeals or B.I.A.) demonstrated that the definition of torture can be viewed more expansively for purposes of relief under the U.N. Convention Against Torture (CAT).
The case concerned a citizen of Mexico who had lived in the U.S. with a green card for many years, but been convicted of an aggravated felony. Such a conviction bars noncitizens from most forms of relief from deportation.
However, an aggravated felony does not bar protection under CAT. As described in Nolo’s article “Your Rights After a Grant of Convention Against Torture Protection or Withholding of Removal,” CAT protects noncitizens from being removed to a country where they would more likely than not face torture – defined broadly to include any intentional unlawful infliction of severe pain or suffering, whether physical or mental, with acquiescence of a public official, for such purposes as punishment, gaining a confession, intimidation, or discrimination.
Someone who is granted CAT protection does not receive any permanent status in the U.S., but cannot be deported for as long as the risk of torture remains, either.
The Mexican applicant’s attorneys made the case that, if returned to Mexico, the applicant’s mental illnesses, self-mutilating behavior, and limited mental competency would result in him being placed into a psychiatric institution. There, they alleged, he would likely be subjected to the long-term use of psychotropic drugs and physical restraints that are detrimental to health, despite the availability of less painful, restrictive, and dangerous possibilities. What’s more, the Mexican government runs many mental institutions and turns a blind eye to such measures in the private facilities. The probability of the applicant facing such a prospect was, according to the Immigration Judge, enough to amount to torture requiring protection under CAT.
Another interesting note on this case: The Immigration Court made sure to point out that the decision “will not necessarily result in the respondent being released from custody of the DHS if the respondent is subject to such custody.” So the applicant may have won the right to be confined within the U.S. rather than in Mexico.