Introduction: Understanding the Definition of “Torture” for purpose of Withholding and Deferral of Removal

Under the Convention Against Torture (implemented through Department of Homeland Security (DHS) regulations), an alien who is subject to a final order of removal may seek withholding of removal, or, if he or she is subject to a mandatory denial ground for withholding [see article], deferral of removal. In order to be eligible for relief under the Convention Against Torture, the alien must demonstrate that he or she would “more likely than not” be tortured in the country to which he or she had been ordered removed. In this article, we will examine administrative and judicial precedent relating to establishing eligibility for withholding of removal and deferral of removal under the Convention Against Torture. Before reading this article, please make sure to read our full article about the rules for relief under the Convention Against Torture [see article]. To learn about caselaw regarding the burden of proof for Convention Against Torture claims, please see our companion article [see article].

Please see the following articles to learn more about statutory withholding of removal and relief under the Convention Against Torture:

Applying for Withholding of Removal [see article]
Eligibility for Statutory Withholding of Removal [see article]
Mandatory Denial Grounds for Withholding of Removal [see article]
Issues for Aliens who have been Granted Deferral of Removal [see article]

Overview of what Constitutes Torture

The regulations regarding the implementation of the Convention Against Torture are found in 8 C.F.R. 208.18. For a detailed examination of the regulations, please see the following section in our main article about relief under the Convention Against Torture [see section]. In the forthcoming sections of this article, we will examine the most important administrative and judicial precedent regarding how the regulatory definitions of torture are adjudicated.

First, we will examine the most important administrative precedent regarding the definition of torture, the Matter of J-E-, 23 I&N Dec. 291 (BIA 2002) [PDF version], to glean from it an overview of the regulatory criteria for what constitutes “torture.” The Board listed the five elements that are required by regulations in order for an act to constitute torture:

1. The act must cause severe physical or mental pain or suffering;
2. The act must be intentionally inflicted;
3. The act must be inflicted for a proscribed purpose;
4. The act must be inflicted by or at the instigation of or with the consent or acquiescence of a public official who has custody or physical control of the victim; and
5. The act cannot arise from lawful sanctions.

In its decision, the Board, relying upon the regulations, expanded upon each of the five points required in order for an act to constitute torture.

1. Citing to 8 C.F.R. 208.18(a)(1), (2), the Board explained that the act must be an extreme form of cruel and inhuman treatment.
2. Citing to 8 C.F.R. 208.18(a)(5), the Board explained that the act must be specifically intended to inflicted severe physical or mental pain or suffering.
3. The Board explained that the act must have an “illicit purpose.” It noted that the regulations provide a non-exhaustive list of examples of such illicit purposes (e.g., to obtain information or a confession, to punish for a victim’s or another’s act, to intimidate or coerce a victim or another, or any other discriminatory purpose).
4. The Board explained that the definition of “torture” covers “intentional governmental acts.” It does not cover negligent acts or acts by private individuals not acting on behalf of the government.
5. Citing to 8 C.F.R. 208.18(a)(3), the Board explained that the definition of “torture” does not “include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” However, it does cover sanctions that “defeat the object and purpose of the Convention Against Torture.”

1. Requirement that Act be an “Extreme Form of Cruel and Inhuman Treatment”

Under 8 C.F.R. 208.18(a)(2), in order for an act to constitute torture, it must be an “extreme form of cruel and inhuman treatment” and not a lesser form of “cruel, inhuman or degrading treatment.” In this section, we will examine federal court decisions in cases where the “extreme form of cruel and inhuman treatment standard was not met.”

Gui v. INS, 280 F.3d 1217 (9th Cir. 2002) [PDF version]: The Ninth Circuit found that harassment, hit-and-run incidents, wiretapping, and detention and interrogation did not rise to constitute “torture.” However, in this case, the Ninth Circuit found that the applicant was eligible for asylum, demonstrating the distinction between asylum and relief under the Convention Against Torture.

Auguste v. Ridge, 395 F.3d 123 (3d Cir. 2005) [PDF version]: The Third Circuit held that indefinite detention in harsh prison conditions (in this case, regarding Haiti’s then-policy of indefinitely detaining certain persons deported to Haiti) does not necessarily constitute torture. Furthermore, in order to demonstrate eligibility on the basis of pervasive conditions in Haitian prisons, the alien must demonstrate that he or she personally would be more likely than not to be tortured. But see Jean Pierre v. Att’y Gen. of the U.S., 500 F.3d 1315 (11th Cir. 2007) [PDF version], where the Eleventh Circuit held that the Board did not give reasoned consideration to an alien’s claim for relief under the Convention Against Torture where the alien presented evidence that he would be singled out for harsh treatment in Haitian prison due to having AIDS.

Jo v. Gonzales, 458 F.3d 104 (2d Cir. 2006) [PDF version]: The Second Circuit held that the definition of “torture” regarding “severe mental pain or suffering” does not encompass the “destruction, thefts, expropriations, or any other deprivations of property.”

Shkulaku-Purballori v. Mukasey, 514 F.3d 499 (6th Cir. 2007) [PDF version]: The Sixth Circuit held that being hit, kicked, and beaten around the head and stomach by police did not “descend to level of extreme form of cruel and inhuman treatment.”

Haider v. Holder, 595 F.3d 276 (6th Cir. 2010) [PDF version]: The Sixth Circuit held that sexual abuse and humiliation at the hands of the police, twice occurring in public places, did not rise to torture.

Cole v. Att’y. Gen. of the U.S., 712 F.3d 517 (11th Cir. 2013) [PDF version]: The Eleventh Circuit agreed with the decision of an immigration judge that temporary detention without “egregious physical abuse” is not torture.

2. Specific Intent

Under 8 C.F.R. 208.18(a)(3), (4)(i), and (5), an act or acts must be committed with “specific intent” in order to constitute torture.

In the Matter of J-E-, 23 I&N Dec. 291 (BIA 2002), the Board held that the “specific intent” is required rather than mere “general intent.” In the case, concerning prison conditions in Haiti, the Board in denying an application for relief under the Convention Against Torture held that, while the conditions of Haitian prisons were “substandard,” there was no evidence that the Haitian government was “intentionally and deliberately creating and maintaining such prison conditions in order to inflict torture.”

In Pierre v. Att’y. Gen. of the U.S., 528 F.3d 180 (3d Cir. 2008) [PDF version], the Third Circuit held that the fact that Haitian government officials may have knowledge of “severe pain or suffering” incurred by prisoners does not satisfy the “specific intent” requirement for relief under the Convention Against Torture. Citing to its own decision in Auguste, the Third Circuit stated that, “for an act to constitute torture, there must be a showing that the actor had the intent to commit the act as well as the intent to achieve the consequences of the act.” This decision may be contrasted with the subsequent Third Circuit decision in Kang v. Att’y Gen. of the U.S., 611 F.3d 157 (3d Cir. 2010) [PDF version], wherein the Third Circuit held that an alien who presented evidence that, while confined in Chinese prison, she had been subjected to, among other things, being hung an awning, light shone directly into her eyes, and electrocution, had met her burden for showing that the substandard treatment in Chinese prison was done with the specific intent of the Chinese government to commit torturous acts.

3. Illicit Purpose

The Matter of J-E- explains that “illicit purpose” is not explicitly defined in the regulations. Rather, as we discussed in our discussion of the case, the regulation offers examples of illicit purposes.

One interesting point that distinguishes relief under the Convention Against Torture from asylum and statutory withholding of removal is that there is no requirement that the applicant for relief demonstrate that he or she was tortured based on having certain beliefs or being the member of a particular social group. Rather, the act need only be for an illicit purpose. The Second Circuit decision in Tun v. INS, 445 F.3d 554 (2d Cir. 2006) [PDF version] is instructive in this regard. In Tun v. INS, the Second Circuit wrote that “[i]ndividuals are protected against torture regardless of whether such torture would be on account of one of the traditional protected grounds of race, religion, nationality, membership in a particular social group, or political opinion.” However, while the applicant for relief under the Convention Against Torture need not demonstrate that he or she is being tortured based on a specific characteristic, the decision notes that “torture requires proof of something more severe than the kind of treatment that would suffice to prove persecution.”

4. Government Involvement

In order for an act to constitute “torture,” there must be an element of government involvement. First, the act must have been inflicted by or at the instigation of or with the consent and acquiescence of a public official. This is a point that distinguishes relief under the Convention Against Torture from asylum and statutory withholding of removal, neither of which has such a requirement. Second, the public official must have “custody or physical control of the victim.”

In the Matter of Y-L, 23 I&N Dec. 270 (AG 2002) [PDF version], the Attorney General held that a “public official” must be “acting in an official capacity” in acquiescing to torture.

In Zelaya v. Holder, 668 F.3d 159 (4th Cir. 2012) [PDF version], the Fourth Circuit remanded a case to the BIA for further consideration of whether the refusal of Honduran police to help the applicant when he was being harassed by gangs satisfied the “acquiescence of a public official” requirement for relief under the Convention Against Torture. In Mouawad v. Gonzales, 485 F.3d 405 (8th Cir. 2007) [PDF version], the Eighth Circuit remanded to the BIA a case where the alien expressed fear of torture at the hands of Hezbollah for consideration of whether Hezbollah commits such acts with the acquiescence of the Lebanese government. In Cole v. Holder, 659 F.3d 762 (9th Cir. 2011) [PDF version], the Ninth Circuit remanded to the BIA for consideration of whether an alien’s claim that medical care would be intentionally withheld because of his gang tattoos constituted governmental “acquiescence.”

The Ninth Circuit has held that the requirement of “acquiescence” is met when a single public official acquiesces to torture. The alien is not required to prove that the government had actual knowledge of the specific act of torture or that the entire government would have acquiesced or consented to the torture. For example, in Cordoba v. Holder, 726 F.3d 1106 (9th Cir. 2013) [PDF version], the Ninth Circuit held that “considerable evidence” supported an applicant’s claim for relief under the Convention Against Torture where he had alleged that “Mexican federal police officers at multiple checkpoints appeared to aid his captors during a two-and-a-half hour drive from his home to [the] place where he was held by [a] drug cartel.” The Ninth Circuit held, more broadly, that a public official must have awareness of a torturous activity but need not have actual knowledge of the specific incident of torture.

In the Matter of S-V-, 22 I&N Dec. 1306 (BIA 2000) [PDF version], the Board held that, in order to constitute “torture” for purpose of relief under the Convention Against Torture, the perpetrator cannot be an entity or entities “that a government is unable to control.”

In the Matter of S-V-, 22 I&N Dec. 1306 (BIA 2000), the Board held that the applicant must demonstrate that the government is not only aware of the activity but powerless to stop it, but also that the government is willfully accepting of the conduct. However, several Circuits explicitly rejected the Board’s willfully accepting standard, holding instead that the requisite standard is “willful blindness.” In Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003) [PDF version], the Ninth Circuit held that the “BIA’s interpretation and application of acquiescence [in the Matter of S-V-] impermissibly requires more than awareness and instead requires that a government be willfully accepting of a third party’s torturous activities.” Under the willful blindness standard, mere awareness of the torturous activities by third parties may be sufficient so long as the government would have been able to stop the activities but did not do so. The question of whether the proper standard is willful acceptance or willful blindness is particularly relevant to situations where the alleged torture is committed by a third party. The Matter of S-V-‘s willfully accepting requirement has been explicitly rejected by the Second, Third, Fifth, Sixth, Ninth, and Tenth Circuits, each of which uses the willful blindness standard (see footnote for examples).1 However, the Board has not reversed its holding regarding the willful acceptance standard, and immigration judges are still bound by the Matter of S-V- outside of the circuits where there is contrary precedent. For example, see Marroquin-Ochoma v. Holder, 574 F.3d 574 (8th Cir. 2009) [PDF version], wherein the Eighth Circuit noted that the immigration judge used the willful acceptance standard but did not render a decision on the correctness of the standard as it was not at issue in Marroquin-Ochoma (the Eighth Circuit noted that a number of other circuits rejected the willful acceptance standard).

In Azanor v. Ashcroft, 364 F.3d 1013 (9th Cir. 2004) [PDF version], the Ninth Circuit rejected the Board’s position set forth in the Matter of J-E-, 23 I&N Dec. 291 (BIA 2002), that an alien must have been or must be “in the custody or physical control” of the public official(s) in order to be eligible for relief under the Convention Against Torture. However, this position has not been explicitly adopted by the other circuits.

In Ornelas-Chavez v. Gonzales, 458 F.3d 1052 (9th Cir. 2006) [PDF version], the Ninth Circuit held that there is no requirement that the applicant have reported his torture to public officials. However, the Ninth Circuit distinguished Ornelas-Chavez in Rahimzadeh v. Holder, 613 F.3d 916 (9th Cir. 2010) [PDF version], holding that where the persecutor is not a state actor, but rather is a third party, it should be considered whether the applicant for relief reported the incidents. In Mayorga-Vidal v. Holder, 675 F.3d 9 (1st Cir. 2012) [PDF version], the First Circuit considered an alien’s failure to report his or her torture to government authorities, in conjunction with other factors, in finding that the alien was ineligible for relief under the Convention Against Torture.

In De La Rosa v. Holder, 598 F.3d 103 (2d Cir. 2010) [PDF version], the Second Circuit remanded to the BIA for further consideration of whether the existence of public officials who endeavored to prevent the torture would render an alien ineligible for relief where other public officials acquiesced to the torture.

5. Lawful Sanctions

An alien may not gain relief under the Convention Against Torture if his or her pain or suffering arises from, or is inherent in or incidental to, lawful sanctions that do not otherwise contravene the purposes of the Convention Against Torture.

In Nuru v. Gonzales, 404 F.3d 1207 (9th Cir. 2005) [PDF version], the Ninth Circuit explained that “lawful sanctions” is not explicitly defined, but that the mere fact that sanctions are “lawful” in the country where they are administered does not render them non-torturous (holding that an Eritrean national who was abused for speaking up against a war while in the Eritrean military, and whpo would be punished upon return to Eritrea for desertion, had sustained his burden for relief under the Convention Against Torture). In Ghebrehiwot v. Att’y. Gen. of the U.S., 467 F.3d 344 (3d Cir. 2006) [PDF version], the Third Circuit held that an Eritrean who may be punished for desertion was not precluded from eligibility for relief merely because the sanctions were “lawful.” In Zhang v. Gonzales, 432 F.3d 339 (5th Cir. 2005) [PDF version], the Fifth Circuit held that a national of China who based a claim for relief on the fear that he would be punished for not reporting to police after an arrest and for violating Chinese immigration laws did not have a basis for relief because the sanctions would constitute “lawful sanctions” and because he presented no evidence that the sanctions would be “so depraved that they may independently be considered acts of torture.”

Conclusion: Precedent Regarding the Definition of “Torture”

An alien who is placed in removal proceedings should consult with an experienced immigration attorney. An experienced immigration attorney will be able to evaluate the alien’s case and determine possible options for seeking relief from removal. Certain aliens may have viable cases for asylum, statutory withholding of removal, and/or relief under the Convention Against Torture. There is, in general, a high burden for establishing that an alien is more likely than not to be tortured in the country of intended removal [see article]. If an alien has a potential claim for relief, an experienced immigration attorney will be able to study the situation and the controlling law in the jurisdiction from which the case arises in presenting a compelling case for the alien’s eligibility for relief to the court.

Please refer to the introduction for links to our collection of articles on statutory withholding of removal and withholding of removal and deferral of removal under the Convention Against Torture.

  1. See e.g., Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir. 2004) [PDF version]; Rafiq v. Gonzales, 468 F.3d 165 (2d Cir. 2006) [PDF version]; Valdiveiezo-Galdamez v. Att’y. Gen. of the U.S., 663 F.3d 582 (3d Cir. 2007) [PDF version] (declined to follow); Suarez-Valanzuela v. Holder, 714 F.3d 241 (4th Cir. 2013) [PDF version]; Hakim v. Holder, 628 F.3d 151 (5th Cir. 2010) [PDF version]; Amir v. Gonzales, 467 F.3d 921 (6th Cir. 2006) [PDF version]; Karki v. Holder, 715 F.3d 792 (10th Cir. 2013) [PDF version].

Resources and materials:

Kurzban, Ira J. Kurzban’s Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 675-80, Print. Treatises & Primers.