REFUGEE AND IMMIGRANT PROGRAM
Relief Under Article 3 of the United Nations Convention Against Torture

I. INTRODUCTION

In November 1994, the United States became a full party to the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (Torture Convention) (Opened for signature February 4, 1985, G.A. res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984), reprinted in 23 I.L.M. 1027 (1984), modified in 24 I.L.M. 535 (1985)). Article 3 of the Torture Convention prohibits the United States from returning a person to a country where there are substantial grounds for believing that the person may be in danger of torture. According to Article 3:

1) No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2) For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations, including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant, or mass vilations of human rights.

Torture is defined under Article 1 of the Torture Convention as :

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiensce of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

II. Article 3 of the Torture Convention vs. Asylum/Withholding of Removal

Relief under Article 3 of the Torture Convention may be the only viable option for individuals are ineligible for asylum and withholding of removal or who have exhausted all other forms of relief available to them. For example, individuals who have committed aggravated felonies, particularly serious crimes, or missed the one-year deadline may still find protection under Article 3.

There are several differences between Article 3 and asylum and withholding of removal:

1) There are no exceptions to relief under Article 3 if an individual who qualify for protection against torture. For instance, individuals who were persecutors before arriving in the US or who have committed an aggravated felony or a particularly serious crime can apply for relief under Article 3. In all circumstances, the United States is obligated to not return an individual to a country where the individual will be tortured.

2) An individual does not need to show that he/she will be tortured on account of religion, political opinion, race, nationality, or membership in a particular social group.

3) Article 3 focuses on the liklihood of torture in the future whereas asylum/withholding of removal allows protection due to past persecution and a well-founded fear of future persecution. Past perscution is still a factor to show the likelihood of future persecution if country conditions are unchanged from the time the past persecution took place.

4) Article 3 provides protection only against torture committed by or with the consent or acquiescence of a public official or other person acting in an official capacity. Despite this element in the definition of torture in Article 3, some immigration practitioners have raised Article 3 claims where the torturer is a nongovernmental actor.

III. Standard of Proof

The Senate in its ratification of the Torture Convention stated that the "substantial grounds for believing" under Article 3 means that an individual must show that it is "more likely than not that he/she will be tortured (Senate Report, 136 Cong. Rec., section 7486-92 (daily ed., Oct. 27, 1990)). Thus, the standard for Article 3 is the same as in the standard for withholding of removal in that an individual must show that there is 50% chance or more of torture..

IV. Procedures for Relief Under Article 3

The U.S. Department of Justice published a rule on February 19, 1999 to formally implement U.S. obligations under the Torture Convention.  The rule became effective March 22, 1999.  Prior to that date, the INS had considered Article 3 claims in an administrative process under which, upon completion of deportation, exclusion or removal proceedings, and prior to the execution of a final order of removal, the INS considered whether removing the alien to a particular country was consistent with Article 3.

The new rule creates two separate types of Article 3 protection.  The first is a new form of the existing remedy of withholding of removal.  The second is deferral of removal, a more temporary form of protection.

Revised 8 CFR ' 208.16(c) creates a new form of withholding of removal for eligible aliens who establish that they are more likely than not to be tortured in the proposed country of removal.

Revised 8 CFR ' 208.17(a) provides for deferral of removal for aliens who would be tortured in the country of removal but who are ineligible for withholding because of serious non-political criminal convictions, terrorist activity, or participation in persecution of others.  Deferral of removal is more easily and quickly terminated than withholding if it becomes possible to remove the alien consistent with Article 3.

The new regulations will not apply to cases in which the INS has already made a final decision under the previous administrative process.  Persons whom the INS has decided can be removed consistent with the Torture Convention will be considered to have been finally denied withholding and deferral of removal.  Those already granted protection will be given either withholding or deferral or removal.  8 CFR ' 208.18(b)(4).  Persons who have been ordered removed by an Immigration Judge and who have Article 3 claims pending with the INS will be sent notices that the interim process is ending and that they must file a motion to reopen with the immigration court or the Board of Immigration Appeals to seek consideration of the claim.  8 CFR ' 208.18(b)(3).  Those with no Article 3 claims pending with the INS and who have been ordered removed before the effective date of the new regulations will have a 90-day window, until June 21, 1999, to file a motion to reopen.  8 CFR ' 208.18(b)(2).

The new rule permits aliens to raise Article 3 claims during the course of regular immigration removal proceedings.  Form I-589, Application for Asylum and for Withholding of Removal, will serve as the application form for Article 3 protection.  The INS has issued supplemental instructions explaining how to use the I-589 form to raise an Article 3 claim.  According to supplemental instructions, the I-589 will be considered an application for withholding of removal under the Torture Convention if the applicant tells the Immigration Judge that he/she desires such consideration, or if the judge determines that the evidence presented indicates that the applicant may be tortured in the country of removal.  In order to apply for withholding of removal under the Torture Convention, the applicant must fully complete the I-589, including a detailed explanation of why the applicant fears torture in response to Question 5, Part C, and a description of any past mistreatment and/or threats in response to Question 3, Part C.

Under the new rule, claims for Article 3 protection will be decided by Immigration Judges.  Decisions of Immigration Judges about eligibility for protection under Article 3 are subject to review by the Board of Immigration Appeals.

All evidence relevant to the possibility of future torture shall be considered, including evidence of past torture inflicted upon the applicant, and evidence of gross, flagrant or mass violations of human rights within the country of removal.  8 CFR ' 208.16(c)(3).  Before determining whether any of the bars to withholding of removal apply, the immigration judge is required to first find whether the applicant is likely to be tortured in the country of removal.  Only after finding such a likelihood of torture is the judge to consider whether any of the bars apply.  If the bars do not apply, the judge will grant withholding of removal.  If one or more of the bars does apply, the judge will defer removal of the applicant.  8 CFR ' 208.16(c)(4); ' 208.17(a).