A fellow practitioner asked me a question today, and I think it merits explaining in the blog:
Do you know what the process is for seeking relief at a USCIS asylum hearing for relief under the Convention Against Torture? We have a hearing on December 29 at Arlington.
1. The first is straight-up asylum. That requires only a showing of a “well founded fear” of future persecution – not a very stringent showing. The fear is based on being part of a protected group, having suffered some kind of persecution or loss (or a well founded fear of future prosecution), and now the fear. An asylum applicant may demonstrate that he is a “refugee” in either of two ways. First, he may demonstrate that he has suffered past persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. INA § 101(a)(42)(A). Second, he may demonstrate a well- founded fear of future persecution on account of a protected ground through credible testimony that he subjectively fears persecution and that his fear is objectively reasonable. In mixed motive asylum cases, the REAL ID Act of 2005, requires an applicant to prove that race, religion, nationality, membership in a particular social group or political opinion was or will be at least one central reason for the claimed persecution. Section 103(a)(3) of the REAL ID Act of 2005 , Div. B of Pub. L. 109-13, 119 Stat. 302,303; In J-B-N & S-M-, 24 I&N Dec. 208 (BIA 2007).
2. “Withholding” is the next rung. That requires a showing of a “clear probability” that the applicant will suffer severe harm if returned home. Where asylum (rung 1) can be somewhat objective, withholding and CAT are both objective and are based on the actions of the home country. As with asylum, a threshold determination must be made as to the credibility of the applicant for withholding of removal. INA § 241(b)(3)(C); see also INA §§ 1208(b)(1)(B)(ii) and (iii). A claim for withholding of removal is factually related to an asylum claim, but the applicant bears a heavier burden of proof to merit relief. For withholding, the applicant must demonstrate that, if returned to his country, his life or freedom would be threatened on account of one of the protected grounds. INA § 241(b)(3). To make this showing, the applicant must establish a “clear probability” of persecution, meaning that it is “more likely than not” that he will be subject to persecution on account of a protected ground if returned to the country from which he seeks withholding of removal. Cardoza-Fonseca, 480 U.S. 421. The applicant’s credible testimony alone may be sufficient to sustain this burden of proof. 8 C.F.R. § 1208.16(b). If an alien demonstrates that s/he suffered past persecution in the proposed country of removal, the burden shifts to the Department to demonstrate that a fundamental change in circumstances has occurred in that country or that the applicant could safely relocate to another area in the proposed country of removal. 8 C.F.R. § 1208.16(b)(1). There is no discretionary element. Therefore, if the applicant establishes eligibility, withholding of removal must be granted. INA § 241(b)(3). Additionally, there is no statutory time limit for bringing a withholding of removal claim.
3. The final rung is “CAT”. Here, the applicant must show that the government will kill them, or members of society that the government cannot control, will kill them, if they return. There must be a showing of protected group, usually some form of proof as to past prosecution, and the clear likelihood that death or severe harm will follow. The applicant for CAT relief bears the burden of proof. 8 C.F.R. §1208.16(c)(2). As with asylum adjudications, the applicant’s testimony, if credible, may be sufficient to sustain the burden of proof without corroboration. Id., see also Matter of Y-B-, 21 I&N Dec. at 1139. However, if the applicant’s testimony is the primary basis for the CAT claim and it is found not to be credible, that adverse credibility finding may provide a sufficient basis for denial of CAT relief. In assessing whether the applicant has satisfied the burden of proof, the Court must consider all evidence relevant to the possibility of future torture, including evidence that the applicant has suffered torture in the past; evidence that the applicant could relocate to a part of the country of removal where he is not likely to be tortured; evidence of gross, flagrant or mass violations of human rights within the country of removal; and other relevant information on country conditions. 8 C.F.R. § 1208.16(c)(3)
In answer to your direct question – because your fella qualifies for asylum, and that claim is the easiest of the three to prove, and further, because the protected classes in CAT (rung 3) are the same as in asylum (rung 1), an application for asylum necessarily covers the CAT claim. The major difference is this – asylum is discretionary. However, if your fella can prove he will be killed or severely harmed (tortured) if he returns, USCIS cannot return him. Note, though, that a grant of CAT is only a deferral of deportation. It grants no rights, and you cannot adjust out of it. Asylum is a much better option.