Article 3 of the United Nations Convention Against Torture Act protects noncitizens from being deported to a country where they are more likely than not to be tortured. For example, a citizen of another country who has arrived in the United States and faces deportation can request protection under the Convention Against Torture (CAT). If protection is granted, the alien is legally entitled to remain in the United States. The continuation of the protection is based solely on the likelihood of torture remaining present. If circumstances in the alien's home country change in a way that makes torture less likely than not, the Department of Homeland Security may reopen the case and seek deportation.
An immigration lawyer will pursue this status if his client is considered a threat to the United States or is barred from asylum or withholding of removal. CAT may be used for people who have committed serious crimes, aggravated felonies either in the US or abroad, have been sentences up to five years in prison for felonies, were involved in persecution of others or terrorism. In this case the US government weights the risks of keeping this person in the US against the probability of having this person tortured in his home country.
Unlike asylum, CAT order grants no path to permanent residency. It also offers no immigration benefits for family members. For this reason, asylum is preferable for aliens who wish to become United States citizens or permanent residents. Immigration attorneys usually always petition for both asylum, withholding of removal, and protection under CAT. If their clients found ineligible for asylum or withholding of removal status, then CAT protection can be sought.
Immigration courts have the authority to grant CAT protection. An alien is permitted to reside anywhere in the United States. The alien also has the right to apply to Immigration and Customs Enforcement (ICE) for work authorization. Aliens receive a letter explaining that though they have an order for deportation outstanding, it has been suspended. This can cause confusion to employers, landlords, and other government agencies, so it is good practice for an immigration lawyer to write a letter on behalf of the alien that explains the status.
Deferral of removal is the least advantageous method of receiving protection under CAT. In this case, the alien has no right to apply for work authorization and may be held in detention for the duration of their stay in the United States; however, they may be released from detention and granted a work authorization by the local ICE director if it is proven that they no longer present a threat to the US society.
The process for obtaining protection under CAT takes place in immigration court. If an alien has been found ineligible for asylum or declines to seek asylum and a deportation order has been established, he or she has a chance to apply for CAT protection. Aliens then must demonstrate that more than 51 percent chance of being tortured exists if they are returned to their country of origin.
The 51 percent standard can be proven through witness testimony and evidence of conditions existing within the home country. CAT defines torture as severe mental or physical suffering inflicted upon the person in question by official authority acting in an official capacity. Prior instances of torture can be used to prove a torture claim. Lesser forms of cruel and inhumane treatment are not considered torture, including the death penalty. A qualified immigration attorney should always be consulted in CAT cases to help establish the likelihood of torture to the immigration court.