Introduction: Withholding of Removal and Deferral of Removal Under the Convention Against Torture

An alien may apply for withholding of removal in removal proceedings. Although asylum and withholding of removal are distinct forms of relief, an application for asylum within removal proceedings will automatically allow the alien to be considered for withholding of removal. An alien may only be granted withholding after a final order of removal is entered. An alien may be granted withholding of removal under the statutory provisions found in section 241(b)(3) of the Immigration and Nationality Act (INA) or through the Convention Against Torture. An alien may also be granted deferral of removal under the Convention Against Torture in lieu of withholding. In this article, we will discuss the rules surrounding eligibility for withholding of removal and deferral of removal under the Convention Against Torture.

To learn about expand on issues involved in this article, please see our full articles:

Administrative and Judicial Precedent Regarding Definition of “Torture” Under CAT [see article]
Adjudicative Issues Regarding Deferral of Removal [see article]

Please read our other articles on withholding of removal to learn more:

Applying for Withholding of Removal [see article]
Eligibility for Statutory Withholding of Removal under section 241(b)(3) [see article]
Administrative and Judicial Precedent Regarding Denial Grounds for Withholding of Removal [see article]

General Overview

The rules for withholding of removal are found in 8 C.F.R. 208.16 to .18. These regulations implement the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Convention Against Torture was entered into U.S. law on October 21, 1998, and the regulations implementing it in the withholding of removal context were enacted on February 19, 1999. Although withholding of removal under the Convention Against Torture is not in the INA, the regulations do at certain points reference the statutes regarding statutory withholding of removal.

It is important to bear in mind as you begin reading this article that the Convention Against Torture protects against prospective torture. Without an element of the risk of prospective torture, an alien who was previously tortured would not be able to obtain either withholding of removal or deferral of removal under the Convention. However, such an alien may instead be eligible for asylum depending on the facts of the case.

Jurisdiction over Withholding of Removal Claims

Under 8 C.F.R. 208.16(a), asylum officers shall not have jurisdiction over withholding of removal claims. Rather, only Immigration Judges and the Board of Immigration Appeals (BIA) may adjudicate withholding of removal claims, and asylum claims, in removal proceedings.

In the Matter of H-M-V, 22 I&N Dec. 256 (BIA 1998) [PDF version], the Board held that it lacked jurisdiction to adjudicate a claim for relief from deportation under the Convention Against Torture because no regulations had been promulgated to give the Board such authority and because the Convention Against Torture is not a self-executing treaty. However, the Board may now consider claims for relief from removal under the Convention Against Torture under the subsequently promulgated 8 C.F.R. 208.16 through .18.

Definition of “Torture”

In order to establish eligibility for either withholding of removal or deferral of removal under the Convention Against Torture, the applicant must demonstrate that he or she is “more likely than not to be tortured if removed to the proposed country of removal” (see 8 C.F.R. 208.16(c)(2) and 8 C.F.R. 208.17(a)). Therefore, before examining the rules for establishing eligibility for relief under the Convention Against Torture, we must first understand how “torture” is defined.

First, the term “torture” is defined in 8 C.F.R. 208.18(a)(1)-(8)).

Under 8 C.F.R. 208.18(a)(1), an act must meet the following requirements in order to be defined as “torture”:

Must be an act that intentionally inflects severe pain or suffering (whether physical or mental) on a person, for
(1) purpose of obtaining from him or her or a third person a confession, (2) punishing him or her or a third person, or (3) for any reason based on discrimination of any kind, when
such acts are committed by or at the instigation of or with the consent and acquiescence of a public official or other person acting in an official capacity.

Accordingly, we see that for an act to qualify as “torture,” it must inflict pain or suffering in order to obtain a confession, punish, or discriminate, and the act must be done by or at the instigation of or with the consent acquiescence of an public official or person acting in an official capacity.

Under 8 C.F.R. 208.18(a)(2), “torture is an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment that do not amount to torture.” Under 8 C.F.R. 208.18(a)(3), the definition of “torture” does not include pain and suffering that arises only from, inherent in, or incidental to lawful sanctions. The regulation states that this includes “judicially imposed sanctions and other enforcement actions authorized by law, including the death penalty.” However, it does not include “sanctions that defeat the object and purpose of the Convention Against Torture…”

Under 8 C.F.R. 208.16(a)(4), in order to constitute torture, mental pain or suffering must be “prolonged mental harm” that is caused by or resulting from (paraphrased):

i. The intentional infliction or threatened infliction of severe physical pain or suffering;
ii. The administration or application, or threatened administration of application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
iii. The threat of imminent death; or
iv. The threat that another person will be imminently subjected to any of clauses (i)-(iii).

8 C.F.R. 208.16(a)(5) requires that an act be specifically intended to inflict severe physical or mental pain or suffering to constitute torture. If an act results in unanticipated or unintended severe pain and suffering, it does not fall under the definition of torture found in 8 C.F.R. 208.16(a).

Under 8 C.F.R. 208.16(a)(6), an act must be directed by a person in the offender’s custody or physical control in order to constitute torture.

“Acquiescence of a public official” is defined in 8 C.F.R. 208.16(a)(7) as where a public official is aware of the torturous activity before it commences and thereafter breaches his or her legal responsibility to intervene and prevent the activity.

Finally, 8 C.F.R. 208.16(a)(8) states that “[n]oncompliance with applicable legal procedural standards does not per se constitute torture.” This means that legal irregularities by themselves do not constitute torture.

In the Matter of J-E-, 23 I&N Dec. 291 (BIA 2002) [PDF version], the Board held that in order for an act to constitute “torture” under 8 C.F.R. 208.18(a), it must satisfy the following elements:

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

To learn about administrative and judicial precedent regarding what constitutes torture, please see our full article [see article].

Eligibility for Withholding of Removal Under the Convention Against Torture

Under 8 C.F.R. 208.16(c)(2), the burden of proof for demonstrating eligibility for withholding of removal under the Convention Against Torture is on the applicant. Specifically, the applicant must demonstrate that “it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” The regulation states that it is possible for the testimony of the applicant alone to satisfy the burden if the applicant is found to be credible. Under the Matter of J-F-F-, 23 I&N Dec. 912, 917 (AG 2006) [PDF version], the government does not have to demonstrate that the alien is not more likely than not to be tortured.

8 C.F.R. 208.16(c)(3) states that all evidence relevant to the possibility that the alien would be tortured in the proposed country of removal shall be considered. This includes, but is not limited to:

(i) Evidence of past torture inflicted upon the applicant;
(ii) Evidence that the applicant could relocate to a part of the country of removal where he or she is not likely to be tortured;
(iii) Evidence of gross, flagrant or mass violations of human rights within the country of removal, where applicable; and
(iv) Other relevant information regarding conditions in the country of removal.

8 C.F.R. 208.16(c)(4) explains that if the immigration judge determines that the alien is more likely than not to be tortured in the country of removal, the alien is entitled to protection under the Convention Against Torture. This protection may take one of the two following forms:

Withholding of Removal (if the alien is not subject to the mandatory denial of withholding of removal); or
Deferral of Removal (if the alien is subject to the mandatory denial of withholding of removal).

The mandatory denial grounds for withholding of removal are found in section 241(b)(3) of the INA and discussed in 8 C.F.R. 208.16(d)(2)-(3). We discuss them in our article on statutory withholding of removal [see section] and in detail on our full article on adjudicative issues regarding the denial grounds [see article]. An alien may demonstrate that he or she is eligible for withholding of removal under the Convention rather than deferral by showing, by a preponderance of the evidence, that a mandatory denial ground should not apply. The rule for certain aggravated felony convictions where a sentence of less than 5 years was imposed is slightly different for withholding of deportation cases commenced before April 1, 1997 [see section].

After Withholding is Granted

Under 8 C.F.R. 208.16(e), if an alien is granted withholding of removal under the Convention Against Torture, he or she may, under certain circumstances, have the denial of an asylum application reconsidered if it was denied solely in the exercise of discretion. Such a denial may be reconsidered if the applicant has a spouse or minor children who would be eligible to follow to join the applicant in the United States if he or she was granted asylum rather than withholding (withholding does not confer derivative benefits). Adjudicators shall consider the reasons for the denial of asylum and reasonable alternatives available to the applicant (in lieu of asylum) for family reunification.

Under 8 C.F.R. 208.16(e), an applicant who is granted withholding of removal may be removed to a third country other than to the country to which removal was withheld.

Eligibility for Deferral of Removal Under the Convention Against Torture

Under 8 C.F.R. 208.16(c)(4) and 208.17(a), an alien will be eligible for deferral of removal under the following circumstances:

The alien is ordered removed;
The alien demonstrated that he or she is entitled to protection under the Convention Against Torture (meaning that the alien showed he or she is more likely than not to be tortured in the country to which he or she was ordered removed to); and
The alien is subject to one of the mandatory denial grounds for withholding of removal described in 8 C.F.R. 208.16(d)(2) or (d)(3) (found in section 241(b)(3) of the INA).

Deferral of removal is part of what distinguishes the withholding/deferral provisions under the Convention Against Torture from the statutory withholding of removal provisions. Deferral of removal in essence guarantees that an alien will garner at least temporary relief from removal even if he or she is barred from withholding. There is no parallel provision for aliens who are found to be subject to one of the asylum bars or to a mandatory denial ground for statutory withholding of removal (and who cannot demonstrate eligibility for relief under the Convention Against Torture).

After Deferral is Granted

Similarly to withholding of removal, an order of deferral of removal applies only to the country for which it was determined that the alien was more likely than not to be tortured. Under 8 C.F.R. 208.17(c), an alien who is granted deferral of removal may remain subject to immigration detention if he or she is otherwise subject. An alien may have a deferral of removal order terminated after a new determination by the immigration judge upon granting a motion by USCIS that is accompanied by new evidence, or after a written request by the alien (see 8 C.F.R. 208.17(c) and (d)). Please see our full article to learn more about the termination of deferral of removal and other issues concerning aliens who have been granted deferral [see article].

Other Adjudicative Scenarios

Cases Beginning Prior to the Enactment of Current Regulations

The regulations regarding protection under the Convention Against Torture were finalized in 1999. Under 8 C.F.R. 208.18(b)(1), any alien in exclusion, deportation, or removal proceedings on or after March 22, 1999, may apply for withholding of removal and be eligible for deferral of removal.

Under 8 C.F.R. 208.18(b)(3)(i), the USCIS will not rely on any policies it employed in implementing the Convention Against Torture prior to March 22, 1999. 8 C.F.R. 208.18(b)(3)(ii) states that all requests for relief under the Convention Against Torture will follow the rules set forth in the current regulations even if proceedings commenced before March 22, 1999.

Convention Against Torture Protection for those Subject to Summary Removal on Security Grounds

Under 8 C.F.R. 208.18(d), an alien who is ordered removed under section 235(c) [see article on summary removal on security grounds] may request protection under the Convention Against Torture. In such a case, the USCIS will assess the case and ensure that the removal would not be executed under circumstances that would violate the obligations of the United States under the Convention Against Torture. Because aliens found removable under section 235(c) are not entitled to removal hearings, the evaluation of the alien’s eligibility for protection will not be subject to provisions of the regulations relating to review by an immigration judge or the BIA. To learn more, please see our article about applying for withholding of removal [see article].

Termination of Withholding of Removal or of Deferral of Removal by the Attorney General

Under 8 C.F.R. 208.18(c)(1), the Secretary of State may forward to the Attorney General assurances that the Secretary obtained from the government of a country to which an alien’s order of removal was deferred to the effect that the alien would not be tortured if he or she were to be removed to that country. Under 8 C.F.R. 208.18(c)(2), the Attorney General shall then, in consultation with the Secretary of State, determine whether the assurances are sufficiently reliable to allow that the alien’s removal would be consistent with the United States’ obligations under the Convention Against Torture. If the Attorney General determines that the alien may be removed after such consultation, the alien’s claim for protection under the Convention Against Torture shall not be considered further by an immigration judge, the BIA, or an asylum officer. However, under Khouzam v. Att’y Gen. of the U.S., 549 F.3d 235 (3d Cir. 2008) [PDF version], an alien whose deferral of removal is terminated on the basis of diplomatic assurances is entitled to a hearing where he or she can “test the reliability of those assurances” before he or she may be removed.

Conclusion: Withholding of Removal and Deferral of Removal Under the Convention Against Torture

Both withholding of removal and deferral of removal under the Convention Against Torture are powerful protections to ensure that the United States does not remove an alien to a country in which he or she would be tortured. For that reason, the treaty may be life-saving for aliens who are able to benefit under it. Due to the difficulties inherent in navigating immigration proceedings and demonstrating eligibility for relief, it is imperative that an alien who has a fear of persecution or torture in the country to which he or she would be removed consult with an experienced immigration attorney. An experienced immigration attorney will be able to evaluate the alien’s situation and determine if there are any available paths to obtaining relief from removal. Please be sure to consult the top of our article for an index of articles relating to withholding of removal and deferral of removal. Furthermore, please see our website’s section on asylum and refugee protection [see category] to learn about other protections that an alien who fears torture in his or her country of proposed removal may be eligible for.

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. 673-85, Print. Treatises & Primers.