United States: The withholding of removal under the Convention Against Torture, including the rights of those granted this status, the validity period of this status, and whether it is renewable [USA105421.E]

Research Directorate, Immigration and Refugee Board of Canada, Ottawa

1. Protection Under the Convention Against Torture

Sources indicate that individuals who fear torture in their home country can apply for relief under the Convention Against Torture (CAT) [1] (University of Miami n.d.; Lawyer 21 Jan. 2016). According to a report on withholding proceedings published by the Pennsylvania Immigration Resource Center (PIRC) of the Pennsylvania State University Dickinson School of Law's Center for Immigrants' Rights, the Code of Federal Regulations (CFR) 1208.16(c)(2), states that a "noncitizen is eligible for relief under CAT when he or she establishes that it is more likely than not that he or she would be tortured if removed to the proposed country of removal" (PIRC Aug. 2014, 12). The following types of relief are available under CAT: withholding of removal and deferral of removal (ibid.; National Immigrant Justice Center November 2013, 7; Immigration Equality n.d.a).

1.1 Conditions for Withholding of Removal

In a telephone interview with the Research Directorate, an immigration lawyer who specializes in removal proceedings and asylum matters, among others, who is also the Chair of the American Immigration Lawyers Association (AILA) National Asylum and Refugee Liaison Committee, explained that withholding of removal under the CAT is a type of relief that can only be applied "defensively" after removal proceedings in the US have been initiated (Lawyer 21 Jan. 2016). The lawyer explained that

if the individual is granted withholding of removal under CAT, the immigration judge first issues a removal order against him/her and then "withholds" or "defers" the order, granting the individual the right not to be removed to the country of feared torture. (ibid.)

Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

1.2 Conditions for Deferral of Removal

Sources indicate that deferral of removal may also be granted under the CAT protection (US 2012, 1208.16(c)(4); Lawyer 21 Jan. 2016; PIRC Aug. 14, 12). A more temporary (or "more precarious" (Lawyer 21 Jan. 2016)) form of protection, deferral of removal is granted to individuals who would likely be subject to torture in their home country, but who are ineligible for withholding of removal (ibid.; US 15 Jan. 2009). The same sources indicate that deferral of removal under the CAT can be terminated relatively quickly and more easily than withholding of removal if the individual is no longer likely to be tortured if forced to return to his or her home country (US 15 Jan. 2009; Lawyer 21 Jan. 2016), or "if there was fraud in the initial proceedings or the individual committed certain crimes" (ibid.).

1.3 Application Process

Sources state that in order to apply for protection under the CAT, an individual must complete Form I-589 [2], Application for Asylum and for Withholding of Removal (University of Miami n.d.; Lawyer 21 Jan. 2016; Immigration Equality n.d.a) and bring his or her claim before an immigration judge during removal proceedings before the US Immigration Court (Lawyer 21 Jan. 2016). According to the website of the University of Miami School of Law Immigration Clinic, there is no filing deadline for CAT relief and there is no application fee (ibid.). Form I-589 is attached to this Response.

According to the CFR, an applicant must establish that "he or she would be tortured if removed to the proposed country of removal. The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration" (US 2012, 1208.16(c)(2)). Sources state that an applicant for withholding of removal under CAT does not need to establish that the torture is based on one of the five protected grounds (PIRC Aug. 2014, 12; National Immigrant Justice Center November 2013, 7; US 15 Jan. 2009), of race, religion, nationality, membership in a particular social group, or political opinion (ibid.).

The CFR indicates that evidence relevant to the possibility of torture will be considered, including, but 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; and
  4. Other relevant information regarding conditions in the country of removal. (US 2012, 1208.16(c)(3))

CFR further indicates that

[i]n considering an application for withholding of removal under the Convention Against Torture, the immigration judge shall first determine whether the alien is more likely than not to be tortured in the country of removal. 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. Protection under the Convention Against Torture will be granted either in the form of withholding of removal or in the form of deferral of removal. (ibid., (c)(4))

According to the PIRC report, an immigration judge will not grant withholding of removal if it has been determined that

  • the noncitizen ordered, incited, assisted, or otherwise participated in the persecution of an individual because of the individual’s race, religion, nationality, membership in a particular social group, or political opinion;
  • the noncitizen is a danger to the community of the United States because he had been convicted of a particularly serious crime;
  • there are reasons to believe that the noncitizen committed a serious nonpolitical crime outside the United States; or
  • there are reasonable grounds to believe that the noncitizen is a danger to the security of the United States. (PIRC Aug. 2014, 12-13)

The same source further states that "many people are ineligible for withholding of removal under the CAT because they have been convicted of a 'particularly serious crime' and therefore only qualify for deferral of removal" (ibid., 13).

According to a lawyer who’s focus is on "representing individuals in removal proceedings and asylum matters, among others, "withholding of removal or deferral of removal status prohibits sending an applicant to the country of feared torture, but does not protect him from removal to a third country" (Lawyer 21 Jan. 2016). According to the CFR, "nothing" prevents the Immigration and Naturalization Service (INS) "from removing an alien to a third country other than the country to which removal has been withheld or deferred" (US 2012, (f)). The lawyer indicated that in practice, individuals who apply for withholding of removal under the CAT are not typically removed to a third country "because officials of that country have to agree to receive them" (21 Jan. 2016). Corroborating information on the practice of removal to a third country could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

2. Rights of Individuals Granted CAT Relief

According to sources, persons who are granted CAT relief (CAT withholding or CAT deferral) have the right to apply for employment (PIRC Aug. 2014, 13; Lawyer 21 Jan. 2016) and also have the right to study in the US for an indefinite period (ibid.). Individuals under CAT protection cannot become permanent residents, or sponsor family members to move to the US (PIRC Aug. 2014, 13; US 15 Jan. 2009; Lawyer 21 Jan. 2016). Individuals under CAT relief are also not eligible for public benefits (ibid.).

According to the lawyer, individuals under CAT relief cannot travel outside of the US (ibid.). The lawyer further notes that by leaving the US, these individuals "have executed the removal order entered against them and they have no valid document to re-enter the US" (ibid.). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

3. Validity Period and Renewal

According to the lawyer, once an individual receives withholding of removal status, he or she does not need to renew it or to reapply for it (Lawyer 21 Jan. 2016). The status does not have an expiration date (ibid.). However, the source noted that the US government may initiate proceedings to terminate the status if the situation in the country of feared torture changes (ibid.). The lawyer indicated that in practice, it is uncommon for a person under CAT protection to be removed to the country of feared torture (ibid.). However, the lawyer said that if a person under CAT protections commits a crime in the US, the status can be terminated (ibid.). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

Notes:

[1] CAT refers to the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (US 2012, 1208.16(c)(1)). In October 1994, the US ratified the UN Convention and implemented it into its domestic legislation (PIRC Aug. 2014, 16). The US Department of Justice fact sheet on Asylum and Withholding of Removal Relief Convention Against Torture Protections indicates that "CAT protections relate to the obligations of the United States under Article 3 of the United Nations Convention Against Torture. This is an international treaty provision designed to protect aliens from being returned to countries where they would more likely than not face torture" (US 15 Jan. 2009).

[2] PIRC explains that the Form I-589 is the "official application form for a noncitizen expressing fear of returning to his or her home country and who wants to apply for asylum, withholding of removal, and CAT relief (both CAT with holding and deferral)" (Aug. 2014, 19). According to the same source, the Department of Homeland Security "takes the position that in withholding-only removal proceedings, a noncitizen is not eligible for asylum, but may apply for withholding of removal under protection under CAT" (ibid.).

References

Immigration Equality. N.d.a. "Immigration Basics: Relief Under CAT." [Accessed 1 Feb. 2016]

Lawyer. 21 January 2016. Telephone interview with the Research Directorate.

National Immigrant Justice Center. November 2013. Sarah Rose Weinman. "Practice Advisory: Protection-Based Relief from Removal." [Accessed 1 Feb. 2016]

Pennsylvania Immigration Resource Center (PIRC), Pennsylvania State University Dickinson School of Law's Center for Immigrants' Rights. August 2014. "Withholding-only Proceedings. Toolkit." [Accessed 20 Jan. 2016]

University of Miami. N.d. "Asylum, Withholding of Removal, and the Convention Against Torture." [Accessed 20 Jan. 2016]

United States (US). 15 January 2009. Department of Justice. "Asylum and Withholding of Removal Relief Convention Against Torture Protection." [Accessed 20 Jan. 2016]

United States (US). 2012. "1208.16 Withholding of Removal Under Section 241(b)(3)(B) of the Act and Withholding of Removal Under the Convention Against Torture." [Accessed 2 Feb. 2016]

Additional Sources Consulted

Oral sources: Americans for Immigrant Justice; American Gateways; Freedom House Detroit; Heartland Alliance's National Immigrant Justice Center; Human Rights First; University of Miami Immigration Clinic; United States – Department of Justice, Immigration and Customs Enforcement, State Department.

Internet sites, including: American Bar Association; American Immigration Lawyers Association; Amnesty International; Center for Gender and Refugee Studies, University of California Hastings; ecoi.net; Factiva; Freedom House; Human Rights Watch; Immigrationequality.org; Legal Information Institute (LII), Cornell University Law School; Lexisnexis.com; National Immigration Forum; National Network for Immigrant and Refugee Rights; Nolo.com; Political Asylum Research and Documentation Service, Probono.net; United Nations - Office of the High Commissioner for Human Rights, Refworld; United States – Citizenship and Immigration Services; Department of Homeland Security, Library of Congress, State Department, US Committee for Refugees and Immigrants.

Attachment

United States. N.d. Department of Homeland Security. "I-589, Application for Asylum and for Withholding of Removal." [Accessed 20 Jan. 2016]