Editor's Comments of the Day

The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) prohibits the return of a person to another country where there are substantial reasons to believe that the person would be in danger of being subjected to torture. A CAT claim may be raised for relief from removal as an alternative to an asylum or withholding claim. Advantages of the CAT are that there are no eligibility bars (even aggravated felons may apply) and the claim may be raised even after a final order of deportation has been issued. Disadvantages are that the CAT only applies to fear of torture by a government or a person acting for the government and requires a higher standard of proof than asylum. Even if a person is successful under a CAT claim, he may be removed from the US to a third country.

There have been several decisions under the CAT over the past few months. Releif was granted in Matter of Opku, A75-794-878 (BIA August 7, 2000), where the Board of Immigration Appeals (BIA) found that prison guards were public officials and their actions fell under the definition of torture. A district court granted CAT relief to a woman who had been previously denied asylum but was a victim of domestic violence, atrocious persecution and torture at the hands of her husband. In Mansour v. INS, No. 99-3940 (7th Cir. Oct. 16, 2000), the district court found that the BIA erred when it did not adequately consider the Petitioner's torture claim based on his ethnic/religious affiliation as an Assyrian Christian. In a decision dated October 13, 2000, the court granted deferral of removal under CAT to a Cuban based on the past treatment of the respondent by the Castro government and since the regime is still in existence, there was a likelihood that the respondent would be recognized on his return. CAT relief was denied in Miguel v. Reno, No. 00-3291 (E.D. Pa. August 25, 2000), where the court overturned relief under CAT because the Petitioner failed to provide sufficient direct evidence to meet his burden of demonstrating that it was "more likely than not" that he would be tortured if forced to return to his home country. The parameters of relief under CAT are still being defined, but it should be considered in any case where a claim for asylum and withholding is made.