Introduction: Burden of Proof for Relief Under the Convention Against Torture

In order to demonstrate eligibility for withholding of removal or deferral of removal under the Convention Against Torture, an alien must demonstrate that it is “more likely than not” that he or she would be tortured in the country of intended removal. In this article, we will examine the applicable regulations and administrative and judicial precedent regarding meeting the burden of proof in order to demonstrate eligibility for relief under the Convention Against Torture. Before reading this article, please make sure to read our main article about relief under the Convention Against Torture [see article]. In addition, please see our article examining key administrative and judicial precedent regarding the definition of “torture” in the Convention Against Torture Context [see article].

Burden of Proof in Regulations

Under 8 C.F.R. 208.16(c)(2), the burden lies with the applicant for relief under the Convention Against Torture to demonstrate that he or she would be more likely than not to be tortured if he or she were removed to the country of intended removal. Under 8 C.F.R. 208.16(d)(4), if the applicant meets his or her burden, he or she must be granted either withholding of removal or deferral of removal [see article] under the Convention Against Torture. The decision of whether to grant relief is not discretionary in the case of an applicant who sustains his or her burden for demonstrating eligibility for relief.

In Kaplun v. Att’y. Gen. of the U.S., 602 F.3d 260 (3d Cir. 2010) [PDF version], the Third Circuit established the following test for evaluating whether an alien is more likely than not to be tortured:

1. What is likely to happen if the [alien] is removed; and
2. Does what is likely to happen amount to the legal definition of torture?

In Kaplun, the Third Circuit held that these two parts should be analyzed separately. This means that, first, the Third Circuit must determine what is likely to happen if an alien is removed (without regard to whether it would constitute torture) and, second, the court must determine whether what is likely to happen would constitute torture inflicted upon the alien. The Third Circuit explained that step one is a finding of fact whereas step two is a legal question (because “[t]orture is a term of art”).

Evidence to be Considered

Citing to 8 C.F.R. 208.16(c)(3), the Board of Immigration Appeals (BIA) explained in the Matter of J-E-, 23 I&N Dec. 291 (BIA 2002) [PDF version], that all evidence must be considered in evaluating whether an alien is more likely than not to be tortured. This evidence includes, but is not limited to:

1. Evidence of past torture inflicted upon the applicant;
2. Evidence that the applicant could relocate to a part of the country of removal where he or she is not likely to be tortured;
3. Evidence of gross, flagrant, or mass violations of human rights within the country of removal, where applicable;
4. Other relevant information regarding conditions in the country of removal.

Please see the relevant section of our main article on the Convention Against Torture for further discussion [see section].

More Likely than Not Standard

The standard for demonstrating eligibility for relief under the Convention Against Torture is “more likely than not.” This means that an applicant for relief must demonstrate that it is more likely than not that he or she would be tortured if removed to the country to which withholding of removal or deferral of removal is sought.

In the Matter of J-F-F-, 23 I&N Dec. 912 (AG 2006) [PDF version], the Attorney General held that the alien’s burden cannot be met “by stringing together a series of suppositions to show that it is more likely than not that torture will result where the evidence does not establish that each step in the hypothetical chain of events is more likely than not to happen.” This means that if the conclusion of the alien’s argument, that he or she would be more likely than not tortured, necessarily relies upon suppositions that are individually not more likely than not to occur, then the alien cannot sustain his or her burden for relief. Rather, each supposition that the alien makes that is necessary to the ultimate conclusion that he or she is more likely than not to be tortured in the country of intended removal must be more likely than not to occur.

In the Matter of M-B-A-, 23 I&N Dec. 474 (BIA 2002) [PDF version], the Board rejected a claim for relief by a national of Nigeria based on her assertion that she would be imprisoned as a drug trafficker after being removed and subjected to torture while imprisoned. In so doing, the Board found that the applicant had failed to meet her burden proving that she was more likely than not to be identified as a convicted felon and as a result be imprisoned upon removal to Nigeria. The Board explained that she was ineligible for relief because her entire case was “based on a chain of assumptions and a fear of what might happen, rather than evidence that meets her burden of demonstration that it is more likely than not that she will be subject to torture by, or with the acquiescence of, a public official or other person acting in an official capacity if she is returned to her home country.”

The situation in the Matter of M-B-A- can be contrasted with Yi-Tu-Lian v. Ashcroft, 379 F.3d 457 (7th Cir. 2004) [PDF version], wherein the Seventh Circuit found that an alien who feared that he would be arrested and tortured in China sustained his burden, in part, because he demonstrated that it was more likely than not that he would be arrested upon return because (1) he had paid to be smuggled into the United States which is a crime in China and (2) the Chinese would be likely to find out that he had been deported from the United States.

In Kamara v. Att’y. Gen. of the U.S., 420 F.3d 202 (3d Cir. 2005) [PDF version], the Third Circuit held that if an alien has claims that he or she may be tortured by different entities, the probability of torture must be considered in the aggregate. That means that if the alien alleges that there is a chance he or she may be tortured by two distinct and qualifying entities, he or she may meet the burden for eligibility for relief so long as the cumulative probability that he or she would be tortured rises to the level of being more likely than not.

Country Conditions

Although an alien is not required to demonstrate that he or she would be persecuted on specific grounds in order to establish eligibility for relief under the Convention Against Torture, such factors may contribute to satisfying the “more likely than not burden.” In the Matter of G-A-, 23 I&N Dec. 366 (BIA 2002) [PDF version], the Board found that an alien met the burden for demonstrating that he was more likely than not to be tortured if removed to Iran for a variety of reasons, including his religion, ethnicity, duration of residence in the United States, and drug-related convictions. Accordingly, country conditions may be relied upon by an alien to demonstrate that he or she would be more likely than not to be tortured.

Circuit courts have found that the failure of administrative courts to consider country condition reports in denying an application for relief under the Convention of Torture is a reversible error. For example, see e.g., Aguilar-Ramos v. Holder, 594 F.3d 701 (9th Cir. 2010) [PDF version]; Mostafa v. Ashcroft, 395 F.3d 622 (6th Cir. 2005) [PDF version] (following the Matter of G-A-); Zubeda v. Ashcroft, 333 F.3d 463 (3d Cir. 2003) [PDF version].

Under 8 C.F.R. 208.16(c)(3)(ii), whether the applicant could relocate to a part of the country of intended removal where he or she would not be more likely than not to be tortured must be considered. In Maldonado v. Lynch, 786 F.3d 1155 (9th Cir. 2015) [PDF version], the Ninth Circuit overruled its previous decision in Perez-Ramirez v. Holder, 648 F.3d 953 (9th Cir. 2009) [PDF version], and held that the alien bore the burden for demonstrating that the alien could not internally relocate.

Evidence of Past Torture

In the Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) [PDF version], the Board held that an alien who was a national of El Salvador and who based his claim for relief under the Convention Against Torture for past torture (having been shot in the leg by a gang that he had left) was not eligible for relief under the Convention. Although 8 C.F.R. 208.16(c)(i) requires the adjudicators to consider “evidence of past torture inflicted upon the applicant,” the Board found that the applicant failed to prove for a variety of reasons that it was more likely than not that he would be tortured upon being removed to El Salvador. In this case, the incident upon which the applicant based his application for relief had occurred 13 years prior to his application. The Board found that the applicant failed to show that he would be tortured by the gang upon his return to El Salvador, that he would be identifiable as a former gang member, that he would be imprisoned upon his return, or that the El Salvadorian government was involved in or failed to respond to “the prior retaliatory harm he suffered by gang members.” In short, even if an alien demonstrates that he was tortured in the past, that is not necessarily determinative for establishing eligibility for relief under the Convention Against Torture (although it may support an application).

Adverse Credibility Determinations

In Ramsameachire v. Ashcroft, 357 F.3d 169 (2d Cir. 2004) [PDF version], the Second Circuit held that an adverse credibility finding that leads to denial of an asylum application cannot be the sole basis for denying an application for relief under the Convention Against Torture. However, in Guo v. Gonzales, 463 F.3d 109 (2d Cir. 2006) [PDF version], the Second Circuit made an exception for when the adverse credibility finding eliminated any possible factual basis for a claim for relief under the Convention Against Torture. In Camara v. Ashcroft, 378 F.3d 361 (4th Cir. 2004) [PDF version], the Fourth Circuit held that an adverse credibility finding in the asylum and statutory withholding of removal contexts does not necessarily defeat a Convention Against Torture claim when there is relevant evidence not having to do with the adverse credibility finding to support the Convention Against Torture claim.

Higher Burden for Convention Against Torture Relief than Statutory Withholding and Asylum

In Fedunyak v. Gonzales, 477 F.3d 1126 (9th Cir. 2007) [PDF version], the Ninth Circuit considered the case of an alien who had appealed the BIA’s decision to deny his applications for asylum, withholding of removal, and for relief under the Convention Against Torture. The Ninth Circuit found that the alien met his burden for demonstrating that he was more likely than not to be torture, and furthermore demonstrated that the torture would be based on political opinion. Accordingly, the Board did not consider it necessary to remand for consideration of the alien’s claim for statutory withholding of removal since the alien had demonstrated that the torture would be based on political opinion and relief under the Convention Against Torture, which requires a higher burden than for demonstrating persecution. The Board only remanded for consideration of the alien’s application for asylum, which entails a discretionary element.

Conclusion: Burden of Proof for Relief Under the Convention Against Torture

It is crucial for an alien seeking relief from removal to consult with an experienced immigration attorney for a full evaluation of his or her options. In the case of seeking relief under the Convention Against Torture, it is important to understand that the burden for demonstrating eligibility for relief rests with the alien. This means that even if an alien does have a legitimate fear of torture, relief cannot be granted to the alien unless he or she sustains the burden for demonstrating eligibility. In so doing, the alien and his or her attorney must ensure that each step necessary for demonstrating that the alien is more likely than not to be torture must, in and of itself, be established by the alien to be more likely than not. To learn more about relief under the Convention Against Torture, please consult the links in the introduction to this article.

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. 680-83, Print. Treatises & Primers.