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Deferral of Removal Under the Convention Against Torture

Deferral of Removal Under the Convention Against Torture

Deferral of removal under the Convention Against Torture (CAT) means that an order of removal is entered, but the judge also orders the government not to remove or deport the individual because of the likelihood of torture in the home country. To win deferral of removal under CAT, an applicant must show that it is “more likely than not” that she would be subjected to torture upon a return to her home country. A noncitizen can be granted relief under CAT regardless of her criminal record. Also, the torture the applicant fears does not need to be on account of race religion, nationality, political opinion, or membership in a particular social group.

Deferral of removal under CAT is a far more tenuous and temporary form of relief than asylum or withholding of removal. Under the regulations, the Department of Homeland Security (DHS) can file a motion for termination of the order of deferral. This motion is not subject to normal rules for motions to reopen and “shall be granted if it is accompanied by evidence that is relevant to the possibility that the alien would be tortured in the country to which removal has been deferred and that was not presented at the previous hearing.” The regulations do not require the government to show that the evidence is new or was unavailable at prior hearings. The noncitizen in deferral status then must respond by submitting supplementary information that shows that she continues to face the likelihood of torture upon removal. The immigration judge will consider the evidence and arguments and makes a new decision on whether the noncitizen would more likely than not be tortured on a return to the home country. The burden of proof remains on the noncitizen in the new hearing despite the fact that she was already once granted deferral of removal under CAT. If the noncitizen does not meet her burden, deferral is terminated and the noncitizen can be removed.

Noncitizens in deferral status can apply for an employment authorization document from United States Citizenship and Immigration Services (USCIS). Those in deferral status are not authorized to travel abroad and then reenter the United States.


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