Convention Against Torture in Maryland
Compared to asylum proceedings, benefits from the Convention Against Torture are more limited, but still offers a way for people to remain in the United States. If you are seeking asylum and wish to learn more about the Convention Against Torture or your case options, contact our experienced Maryland asylum attorney for a consultation today. Someone who is unfamiliar with immigration proceedings would benefit greatly from the assistance of a knowledgeable and educated legal advocate.
What is the Convention Against Torture?
The UN Convention Against Torture is a legal treaty of which the United States is a member. This treaty is essentially an alternative option for those who are not eligible for asylum, and that provides a more limited benefit, but can allow an individual to legally reside in the United States.
In order to qualify for relief under the Convention Against Torture (CAT), an individual must prove that it is more likely than not that he or she will be tortured upon returning to his or her home country. The individual must prove that his or her persecution qualifies as torture as defined under the Convention Against Torture. This means that the persecution must be an extreme form of cruel and inhuman punishment that will cause severe pain or suffering. Because of this, the Convention Against Torture sets a higher bar, but can be a useful benefit for people who are subject to other barriers to asylum such as missing the one-year deadline, or having a criminal history.
Withholding of Removal
There are two types of relief available under the Convention Against Torture. One form of relief is the deferral of removal and the other is withholding of removal.
Withholding of removal is provided for under the umbrella of the Convention Against Torture but provides a different type of protection. Withholding of removal essentially means that the United States government is prohibited from returning the individual to his or her home country. An individual who is subject to withholding can only have his or her withholding of removal status terminated if his or her case is reopened by the Department of Homeland Security, and this entity reestablishes that the individual is no longer likely to be tortured upon returning to his or her home country. In this way, withholding of removal is not necessarily a permanent status.
Deferral of Removal
Another form of protection under the Convention Against Torture is the deferral of removal, which is a more temporary form of relief. Essentially, deferral against removal provides relief to individuals who will likely face torture upon return to their home countries but are ineligible for withholding of removal or for asylum. Things that may make individuals ineligible for such options include committing acts of persecution against others or having a criminal record.
The biggest difference between deferring of removal and withholding of removal is that the latter provides for more of a permanent status because, in order for it to be terminated, the government must reopen the individual’s case and prove that he or she is no longer likely to be tortured in his or her home country. Regular deferral of removal, on the other hand, can be terminated more easily than the withholding of removal, because the government has a lower bar to meet in order to show that the individual is no longer likely to be tortured. Generally, withholding of removal is a stronger status because it requires the Department of Homeland Security to prove that the individual is no longer likely to be tortured in his or her home country and the department must reopen the individual’s case in immigration court to do so.
Circumstances of CAT
Even if someone was disqualified from seeking asylum in Maryland, CAT still applies to them. Anyone can apply for relief under the Convention Against Torture without being subject to the one-year bar like asylum seekers are. Moreover, the relief offered under CAT also provides some exceptions to individuals barred from applying for asylum due to criminal histories.
CAT will still apply in this situation because the government does not want to remove people to countries in which they are highly likely to be tortured, regardless of whether or not those individuals are subject to some of the statutory bars that are applicable to asylum.
Permanent Legal Residency
The relief offered under CAT does not grant permanent legal residency status and it does not lead to eligibility to apply for a green card. However, although this relief does not offer a permanent status legally, for many people it can, in practice, take the form of a legal status because the government must take affirmative action to terminate the individual’s status in order to actually remove him or her. In many cases, the government doesn’t do this. So, it is possible for an individual to live his or her entire life legally in the United States under a status that he or she has been granted under the Convention Against Torture.
What Else to Know
People should know that the standard for receiving relief under the Convention Against Torture is very difficult to prove because it is the individual’s burden to show that he or she is more likely than not to be tortured upon returning to his or her home country. In this way, the legal standard is different from that of asylum because, in asylum, the individual must only show that there is a reasonable possibility that he or she will be persecuted while, under the Convention Against Torture, the standard for proving a likelihood of torture is higher than the standard for proving persecution. This is because being tortured is different than being persecuted; therefore, the individual must prove that he or she will be subject to a more extreme form of suffering that bears a higher standard of proof.