Role of Torture in the Maryland Asylum Application
Torture is defined by the United Nations as intentionally inflicting mental or physical pain or suffering on a person to obtain information or a confession, punishing a person for an act that he or a third person has committed or is suspected of committing, or intimidating or coercing a person based on discrimination of any kind. When such pain or suffering is inflicted by or at the instigation of a public official or a person acting in an official capacity, it is considered torture.
The threat of torture is not a requirement for seeking asylum. However, it is a legal requirement when applying for relief under the Convention Against Torture (CAT).
Asylum requires showing that a person will be subjected to persecution in their home country. The bar for proving persecution is different, proving persecution has a lower threshold than proving torture. Torture is more difficult to prove and is only applicable for people that are applying for relief under CAT. For this reason, a person facing persecution should contact a Maryland asylum lawyer to learn more about how they may qualify for asylum in the United States.
Proof of Torture
A person does not have to prove that they have previously been subjected to torture, only that it is more likely than not they will be subjected to torture when they return. Further, a person does not have to prove membership to a particular group, such as race, religion, political affiliation or particular social group to be eligible.
It does not have to be an account of one of those protected factors, it just has to be by an entity that the government can and will not control. The likelihood that the case will be approved is higher if an individual has previously suffered torture in their home country.
The Convention Against Torture protects all people that will be subjected to torture in their home country. There is no clause in the Convention Against Torture that limits it to people that are going to be tortured based on their membership to a specific group, like asylum law does.
Questioning Process
First, the government official will try to determine whether the harm that the person fears meets the standard to constitute torture. The bar is higher to establish that kind of persecution.
Second, the government official will attempt to determine whether the torture that the individuals or entity will inflict, is either a part of the government or operating with the acquiescence of the government. That is often the most difficult factor to prove and most of the governments’ questioning will center on that factor.
Affirmative vs. Defensive Applications
The type of process that they will proceed with depends on whether the individual is applying for relief under the convention against torture affirmatively or defensively. If they are applying in the asylum office with USCIS, it will be a question and answer process that is closer to an investigation, than an interrogation. It is not typically a combative situation.
If somone is applying defensively in immigration court, it is more hotly contested because the prosecutor will be searching for flaws in the story. This process is an adversarial proceeding and there is a higher threshold to prove the claim in immigration court. In either case, however, the demeanor and background of the judge, prosecutor, and/or USCIS adjudicator can change the feel of the proceeding until it seems more like an interrogation than an interview.
Preparation for the Asylum Application
It is important to review and study the statements and declarations that set forth in the initial filing before going to the interview. Details and timelines can become muddled with time, especially when waiting years for an interview or asylum hearing and/or when a person has been through traumatic events like most of the applicants in these cases have been.
A person should know their story and make any corrections that need to be made to the filing at the beginning of the interview or hearing. In these cases, the applicants’ credibility is paramount so if a contradict occurs, it could impact their outcome negatively.
People should know that the standard of proof under the Convention Against Torture is higher than the standard for asylum. Instead of showing that there is a reasonable likelihood that they will be tortured or persecuted, they have to show that it is a more likely than not that they will be tortured.
The evidence allowances are similar to asylum or withholding of removal claims. The court will accept anything that is put forth as evidence so a person can be creative with the documents that are submitted. The court will, however, place more weight on evidence that will support a pattern of human rights violations by the home country’s government when making a decision on the case.