Proving Threat of Torture in Asylum Cases

Proving threat of torture in asylum cases can be a daunting task in an already intimidating process. An experienced Fairfax asylum lawyer can help you prepare your case. However, it is important to note that a person does not have to prove that he or she is likely to be tortured pursuant to the definition of torture set forth in the Convention Against Torture (CAT) in order to qualify for asylum. Rather, the requirement is to prove persecution, not torture.

Legal Definition of Torture

Torture is broadly defined in the Convention Against Torture. Essentially, it requires that a person show that there will be intentional unlawful infliction of severe suffering or pain with the consent of a public official or the government, or with the acquiescence of government. In terms of government acquiescence, the standard is that it is an entity that will be torturing that the government is aware of and is unwilling or unable to stop.

The torture needs to be for purposes like punishment or confession, intimidation or discrimination. A broad role of conduct can constitute a reason for the torture, but it specifically has to be either a government entity that is going to be inflicting the torture, or an entity working with the acquiescence of the government.

Seeking Protection Under CAT

For protection under the Convention Against Torture, a person does not need to show the torture will occur because of one of the five traditional grounds for protection. A person does not need to prove belonging to a particular social group to get protection under the Convention Against Torture. Likewise, a person does not have to prove that they have been tortured before, although proof of past torture will make it much easier to prove the likelihood of future torture.

The standard is simply that it has to be more likely than not that a person will be tortured if they returns. Past torture definitely makes it easier to prove that but it is not a requirement.

Potential Questions

First, the government will ask about what type of harm a person fears. Keep in mind that torture can be mental or physical suffering, it does not have to be physical. They will ask many questions about what type of harm the applicant fears, what is the basis for the fear.

Another important thing that they will question is what entity will be inflicting the torture. Is it a government entity, is it a state-ordered entity, or is there acquiescence of the government or the state towards the party that will be inflicting the torture?

Setting

The questions will be asked in a trial-like setting. The applicant will be cross-examined by the government and prosecutor in an effort to test or impeach credibility or to argue that a person’s claim does not qualify.

There have been cases where the government attorney agrees that a person has a very strong case and will therefore not vigorously oppose the person. They will go through the formality of the question and answer portion. However, that approach is quite rare and most of time they oppose the grant, especially if the applicant has a serious criminal record.

Preparation

The best way to prepare for the cross examination is to be extremely familiar with everything that one has submitted. Consistent and accurate testimony is one of the most important factors when it comes to presenting one’s case before the judge.

How An Attorney Can Help

Proving threat of torture in asylum cases is not necessary. However, proving the similar threat of prosecution is, and it will require a tremendous amount of documentary evidence supporting a person’s claim and country condition evidence. In these cases, because the standard of proof is so high, it is very helpful to have experts who can testify to the country conditions and to the involvement or acquiescence of government in the torture. In addition, working with an experienced attorney who can guide and advise you throughout the process will prove invaluable as you prepare to present your case.