United Nations Convention Against Torture (“CAT”) / Deferral of Removal

“CAT” is short for the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. CAT prohibits the U.S. government from returning an alien to any country in which the alien would most likely be tortured.

CAT protection is also known as “deferral of removal.” It is similar to asylum and “withholding of removal” with a few key differences:

To help you better understand U.N. CAT protection, our California immigration lawyers discuss, below:

1. How do I apply for CAT protection?

There is no formal application to file in order to apply for CAT protection. An alien can apply at the same time and using the same form as his or her “Application for Asylum and Withholding of Removal” (Form I-589).

The alien can apply by:

  • Marking the relevant boxes on the application, and 
  • Supplying all requested information and supporting documents with the application.

An immigrant can also add a request for CAT protection later by filing a supplement to his or her asylum application.

You can find complete instructions for requesting CAT protection on the U.S. Citizenship and Immigration Services (USCIS) website.

2. Is there a deadline by which I must apply for CAT protection?

Unlike an asylum application, there is no deadline for applying for CAT protection. A refugee can ask for CAT protection even after a final order of deportation or removal has been issued.

3. What constitutes torture?

For purposes of CAT protection, “torture” is defined as:

  • Any act by which 
  • Severe pain or suffering, whether physical or mental 
  • Is intentionally inflicted on a person 
  • For such purposes as:
    • obtaining from him or her or a third person information or a confession, or
    • punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or 
    • intimidating or coercing him or her or a third person, or 
    • for any reason based on discrimination of any kind, 
  • When such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.1

To constitute torture, the act(s) must be of cruel and inhuman treatment. Lesser forms of cruel, inhuman or degrading treatment or punishment do not amount to torture.

For example, torture does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions, including the death penalty.

3.1. Does mental suffering count as torture?

In order for a refugee to claim CAT protection based on mental pain or suffering, the suffering must involve prolonged mental harm caused by or resulting from:

  • The intentional infliction or threatened infliction of severe physical pain or suffering;
  • The administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
  • The threat of imminent death; or
  • The threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the sense or personality.

Examples of acts that might qualify as torture under CAT include:

  • Severe beatings,
  • Rape,
  • Electric shock,
  • Forced ingestion of drugs or poison, 
  • Starvation of being deprived of water, or
  • Repeated threats of such acts.

3.2. Other limitations on what constitutes torture

In order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering. An act that results in the unanticipated or unintended severity of pain and suffering is not torture.

Additionally, the act must be directed against a person in the offender's custody or physical control.

Noncompliance with applicable legal procedural standards does not constitute torture in and of itself. But if a public official is aware of such activity beforehand and thereafter breaches his or her legal responsibility to intervene to prevent it, it can constitute torture.2

4. How do I prove I would be subjected to torture?

To obtain CAT protection an alien must prove that is more likely than not that he or she would be tortured if returned home.

The alien can do this by providing objective evidence, such as official country reports, news articles, and doctor's reports showing past torture.

The more specific the evidence the better. The evidence should establish:

  • What type(s) of torture the alien has suffered at home in the past (if any),
  • What type(s) of torture the alien's close family or friends have suffered (if any),
  • How your government or a group the government can't control has tortured other similarly situated people, and
  • Anything else that would establish the type of torture the alien is likely to face if returned home.

Note that past torture is just one factor the judge will consider. It does not automatically qualify an immigrant for CAT protection. The alien must show that he / she is more likely than not to be tortured in the future if returned home.

5. How long does CAT protection last?

CAT protection is subject to periodic review by an immigration judge. It can be terminated if:

  • The judge determines the alien no longer faces likely torture in his or her home country, or
  • The alien requests that the deferral of removal is terminated.

6. What limitations are there on CAT protection?

CAT protection offers fewer benefits than asylum. Its main advantage is that bars to asylum and withholding of removal (such as conviction of a serious crime) do not prevent CAT relief.

However, deferral of removal under CAT does not confer any permanent legal status in the United States. It does not even guarantee a release from detention.

It also does not prevent an alien from being removed by the U.S. government to a safe third country if one is willing to take the refugee.

And finally, relief under CAT does not extend to family members (although spouses and children may be able to qualify under their own applications for asylum).

7. Is there any other relief I might qualify for?

In addition to asylum or withholding of removal, eligible refugees may be entitled to protection under:

Need protection from torture or persecution? Call us for help…

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If you or someone you know is seeking status as a refugee in the U.S., we invite you to contact us for a free consultation.

Our Los Angeles, California immigration attorneys can help with asylum, withholding of removal and CAT protection petitions. We may also be able to help you get a reconsideration of your case if your application has been denied.

Call us at (855) LAWFIRM or fill out the form on this page to speak to a knowledgeable and compassionate California immigration lawyer.

Legal references:

  1. 8 CFR 208.18 (a)(1).
  2. 8 CFR 208.18 (a)(4)-(8).

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