Proving the Threat of Torture in Prince William County Asylum

In Prince William County, a person has to prove that there is a probability that they will be tortured in order to rightfully gain asylum. Asylum deals with the threat of persecution and there is a different legal threshold that a person needs to prove. An analysis of a threat of torture comes into play if a person is applying for protection under the Convention Against Torture, which is a separate and different type of relief than asylum. In either case,  an experienced attorney can help with the process.

Legal Definition

When it comes to proving the threat of torture in Prince William County asylum cases, and for purposes of gaining protection under the convention against torture, a person needs to prove that it is more likely than not that they are going to be tortured if they are removed to their home country. Torture is a different standard than the persecution in that a person is required to prove asylum law, which means that there must be an intentional and unlawful infliction of severe physical or mental suffering or pain with the consent of a public official and it has to be for purposes such as punishment, obtaining a confession, intimidation, or general discrimination.

To qualify as torture, a person needs to prove that the torturous acts are going to be committed by the government in their home country, at the request of the government in their home country, or more commonly with the acquiescence of the government in their home country. If a person can prove that the government is aware, but unwilling or unable to protect them from this torture, they can qualify.

Standard of Proof

For purposes of the protection under the convention against torture, the legal requirement is difficult to obtain, but it is simpler and more straightforward than protection under asylum or withholding of removal. For asylum and withholding of removal, a person needs to prove that his or her persecution is going to take place on account of their membership in a particular social group.

For protection under the Convention against Torture (CAT), there is no particular social group requirement. A person just needs to prove that, but the standard is higher than for both withholding and asylum and it needs to be more likely than not. So, 51% or more probability that a person will be tortured if they return to their home country. If they can prove that, they will be granted protection under CAT.

There will be many questions surrounding the type of harm that a person fears and whether or not that harm is going to qualify as torture, but generally, the most difficult thing to prove in these cases is the involvement of the government. A person needs to prove that the torture is going to be inflicted at the hands of the government, with the consent of the government, at the request of the government, or with the acquiescence of the home country.

Methodology

When a person is applying for Convention against Torture, it will be done in front of the immigration judge and in a trial setting. There will be a prosecutor from the government, the DHS prosecutor, and a judge. A direct examination will be conducted by the attorney for the applicant and then the cross-examination will be done by the government attorney. It is a trial setting.

Preparation

Proving the threat of torture in Prince William County asylum applications takes a great deal of preparation. A person needs to thoroughly review their statement, all the details of the application, as well as the direct examination questions with their attorney before appearing in court for the examination by the government attorney and the court.

Also, a person will want to be very familiar with any expert witnesses that they are going to bring that can attest the country conditions and government involvement or acquiescence of the torture. In these cases, it is important takes a great deal of preparation.

How An Attorney Can Help in These Cases

It is important to have an attorney familiar with up-to-date case law surrounding relief under the Convention Against Torture. Also, it is important to have a credible expert witness that can speak to the country conditions in the country in question, especially if one is attempting to prove torture with the acquiescence of the government as opposed to torture at the direct hands of the government. Proving the threat of torture in Prince William County asylum cases, or in this case proving its likelihood, is a thorough and trying process. If you are going through this process, working with an attorney with years of experience in this particular area of the law will be immensely helpful.

If a person has been tortured in his or her home country before he or she comes to the U.S., he or she will have a presumption, which is easier to prove that he or she is going to be tortured again when he or she returns. It is much easier to gain protection under the Convention against Torture if a person has been tortured, before but it is not a requirement. As long he or she can prove that there is 51% or more likelihood that he or she will be tortured, he or she can gain protection under CAT.