Immigration regulations create two separate types of protection under Convention Against Torture (CAT). The first type of protection is Withholding of Removal under CAT. Withholding under CAT prohibits the return of an individual to her home country. It can only be terminated if the individual’s case is reopened and the DHS establishes that he/she is no longer likely to be tortured in his/her home country.
The second type of protection is called Deferral of Removal under CAT. Deferral of Removal under CAT is a more temporary form of relief. Deferral of Removal under CAT is appropriate for individuals who would likely be subject to torture, but who are ineligible for withholding of removal, such as persecutors, terrorists, and certain criminals. It can be terminated more quickly and easily than withholding of removal if the individual is no longer likely to be tortured if forced to return to his/her home country. Additionally, an individual granted deferral of removal under CAT, may be detained by the DHS if he/she is deemed to be a threat to the community.
If a Respondent has been convicted of "particularly serious crime" he/she is barred from Withholding of Removal under CAT. An aggravated felony automatically constitutes a particularly serious crime if the sentence required at least 5 years of imprisonment.
While a Respondent's conviction for a particularly serious crime makes him/her ineligible for Withholding of Removal under CAT, he/she may still be eligible for Deferral of Removal CAT. See 8 C.F.R. 1208.17(a).
To be eligible for Deferral of Removal under the Convention Against Torture, a Respondent must show that it is "more likely than not" that he/she will be tortured if removed. See Najjar v. Ashcroft 257 F. 3d 1262, 1303 (11th Cir. 2001). The burden of proof is higher than the burden for asylum. A Respondent must show that it is more likely than not that he/she will be singled out for torture "inflicted by or at the instigation or or with the consent or acquiescence of a public official or other person acting in an official capacity.
Torture is defined as the intentional infliction of severe physical or mental pain or suffering. 8 C.F.R. 1208.18(a)(1). Torture is an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment. It does not include pain or suffering arising only from lawful sanctions, unless such sanctions defeat the purpose of the Convention Against Torture. A Respondent is not required to demonstrate that he/she would be tortured on account of a particular belief or immutable characteristic. See Matter of G-A-, 23 I&N Dec. at 367.
The second type of protection is called Deferral of Removal under CAT. Deferral of Removal under CAT is a more temporary form of relief. Deferral of Removal under CAT is appropriate for individuals who would likely be subject to torture, but who are ineligible for withholding of removal, such as persecutors, terrorists, and certain criminals. It can be terminated more quickly and easily than withholding of removal if the individual is no longer likely to be tortured if forced to return to his/her home country. Additionally, an individual granted deferral of removal under CAT, may be detained by the DHS if he/she is deemed to be a threat to the community.
If a Respondent has been convicted of "particularly serious crime" he/she is barred from Withholding of Removal under CAT. An aggravated felony automatically constitutes a particularly serious crime if the sentence required at least 5 years of imprisonment.
While a Respondent's conviction for a particularly serious crime makes him/her ineligible for Withholding of Removal under CAT, he/she may still be eligible for Deferral of Removal CAT. See 8 C.F.R. 1208.17(a).
To be eligible for Deferral of Removal under the Convention Against Torture, a Respondent must show that it is "more likely than not" that he/she will be tortured if removed. See Najjar v. Ashcroft 257 F. 3d 1262, 1303 (11th Cir. 2001). The burden of proof is higher than the burden for asylum. A Respondent must show that it is more likely than not that he/she will be singled out for torture "inflicted by or at the instigation or or with the consent or acquiescence of a public official or other person acting in an official capacity.
Torture is defined as the intentional infliction of severe physical or mental pain or suffering. 8 C.F.R. 1208.18(a)(1). Torture is an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment. It does not include pain or suffering arising only from lawful sanctions, unless such sanctions defeat the purpose of the Convention Against Torture. A Respondent is not required to demonstrate that he/she would be tortured on account of a particular belief or immutable characteristic. See Matter of G-A-, 23 I&N Dec. at 367.
