Nov 4 Powerpoint Asylum and Convention Against Torture

ASYLUM "EXCEPTIONS" – SAFE THIRD COUNTRY

Authority

• MATTER OF C-I-G-M- & L-V-S-G- (BIA 10/31/25)

• 8 CFR 240.11(h) (RATIFIED 9/2/25)

  • Governs the authority of Immigration Judges (IJs) to apply Asylum Cooperative Agreements (ACA) between the U.S. and countries other than Canada.

Jurisdiction of IJs

• The IJ addresses two critical issues:

  • Application of ACA to the Respondent

  • Whether the respondent (R) has shown by a preponderance of the evidence that they are more likely than not to be persecuted or tortured in the third country.

• If the bar applies, the R is ordered removed to the third country to seek asylum.

• The IJ must consider whether the bar applies before addressing the primary asylum claim.

• The Attorney General (AG) determines if the noncitizen would have access to a full and fair procedure in the third country or if a public interest exception applies.

ASYLUM "EXCEPTIONS" - INA 208(a)(2)(B), (C)

Filing Limit

• Time Limit for Filing

  • One-Year deadline for submitting asylum applications.

  • Exceptions include changed circumstances or extraordinary circumstances.

Changed Circumstances Exception

• This allows for asylum applications previously filed and denied to be reconsidered if new circumstances arise.

Firm Resettlement

• INA 208(a)(2)(B)/8 CFR 208.15

  • If an individual received an offer to resettle permanently in another country before coming to the U.S., this may serve as a bar to asylum.

ASYLUM BARS

Grounds for Ineligibility

• INA 208(b)(2)

• WOR BARS (INA 241(b)(3)(B))

  • Persecutor Bar

  • Applies if the individual engaged in persecution based on one of five protected grounds.

  • No Duress Exception:

    • Matter of Negusie, 29 I&N DEC. 285 (A.G. 2025)

  • Conviction of a Particularly Serious Crime (PSC)

  • Can include aggravated felony (AF) or other crimes based on nature and circumstances of the felony.

  • Reason to Believe: If an individual committed a serious non-political crime, this impacts eligibility for asylum.

  • Danger to the Security of the U.S.

  • Terrorist Bar

  • Similar considerations as above, particularly if the aggregate sentence is 5 years or more.

PROTECTION UNDER THE CONVENTION AGAINST TORTURE (CAT)

Standard of Proof

• The applicant must demonstrate that it is more likely than not that they will be tortured if removed to the proposed country of removal.

• Relevant Regulations:

  • 8 CFR 208.16(c), 208.17, 208.18

  • The applicant's credible testimony may be sufficient to meet the burden of proof without corroboration.

  • INA 240(c)(4)(A) - (C)

DIFFERENCES BETWEEN ASYLUM AND CAT PROTECTION

Comparing Asylum and CAT

• Discussion on similarities and differences between withholding of removal under INA and CAT protections.

• Notably, the thresholds and types of evidence required differ based on the legal standards of each protection type.

TEST OF TORURE UNDER CAT

Definition of Torture

• Which option best describes “torture” for CAT protection?

  • A. Any physical harm inflicted by private individuals with the government’s knowledge.

  • B. Any severe pain or suffering, whether physical or mental, intentionally inflicted by or with the consent or acquiescence of a public official.

  • C. Any mistreatment by a public official that causes physical harm or substantial emotional distress.

  • D. Any act of serious harm occurring in the context of civil unrest.

ACQUIESCENCE REQUIREMENTS

Conditions of Acquiescence

• The term “acquiescence” by a public official requires one or more of the following:

  • A. The government be aware of torture occurring somewhere in the country.

  • B. The official has prior awareness of the activity and thereafter breaches their legal duty to prevent it.

  • C. The official directly participates in the act of torture.

  • D. The official approves of the torture after the fact.

TRUE/FALSE: NEGLIGENCE AND TORTURE

Definition of Torture in Context

• TRUE/FALSE?

  • Torture does not include harm resulting from negligence or adverse conditions that are not intended to cause suffering.

  • Examples:

  • Substandard prison conditions due to lack of resources and poor management.

  • Abusive or squalid conditions in mental health institutions due to neglect.

DETERMINING PUBLIC CAPACITY

Relevant Factors

• To determine if a public official is acting in an official capacity, the following factors are relevant:

  • A. Whether they are acting as a rogue official.

  • B. Whether they used official information to locate the victim.

  • C. Whether they approached the victim in an official vehicle.

  • D. Whether they are a low-level or high-level officer.

  • E. Whether they were wearing a uniform.

PROBLEM 9, PAGE 1390: BILL’S CASE

Case Description

• Bill is one of the leaders of a peaceful resistance movement arrested under the orders of the president of a totalitarian country.

  • Details of Bill’s treatment:

  • Detained in a small jail cell (4’ x 4’).

  • Subjected to beatings and electric shocks.

  • Given minimal food and water.

• Bill is coerced into signing a document denouncing the resistance and refuses.

• After three years, he is released conditionally to leave the country.

BILL’S ASYLUM APPLICATION

Arrival and Proceedings

• Bill arrives in the U.S. with the help of a smuggler.

• One week later, he is apprehended by ICE and places in proceedings.

• He applies for asylum, withholding of removal under the INA, and CAT protection.

• During the process, Bill commits an armed robbery, an aggravated felony, and is sentenced to 5 years in prison.

Legal Challenges

• Despite his torment and the fall of the totalitarian government, Bill fears returning.

• The removal proceeding is about to begin during his imprisonment.

• Questions regarding his eligibility for relief are raised.

RELIEF OPTIONS

Eligibility for Asylum and Withholding of Removal

• Asylum: Not eligible due to aggravated felony conviction.

• Withholding of Removal under INA: Not eligible due to aggravated felony with a sentence of at least 5 years.

• Withholding of Removal under CAT: Same as above; ineligibility persists.

DEFERRAL OF REMOVAL UNDER CAT

Potential Relief

• Bill may still be eligible for deferral of removal under CAT.

• Consideration of whether he has a winning claim hinges on:

  • Past harm and if it rises to the level of torture.

  • Should establish that it was inflicted by or with the consent of public officials.

  • Requirement to show it is more likely than not he will be tortured upon removal to his country.

Conclusion on Eligibility

• Likelihood of future torture may be influenced by government change.

• The conclusion may lean towards not being “more likely than not” that Bill would be tortured upon return to his country.

TEMPORARY PROTECTED STATUS (TPS)

Background and Criteria

• Established by the Immigration Act of 1990.

• Defined under Section 244 of the INA.

• Based on assessments of country conditions; designation by DHS in consultation with other agencies.

• Covers emergent situations in country conditions as per INA 244(b)(1).

Eligibility Requirements

• Includes bars:

  • Convictions for two or more misdemeanors in the U.S. may disqualify applicants.

CURRENTLY DESIGNATED COUNTRIES PER USCIS

• Burma (Myanmar)

• Ethiopia

• Lebanon

• Nepal

• Somalia

• South Sudan

• Sudan

• Syria

• Yemen

• Additional cases under litigation: Venezuela, El Salvador, and Haiti.

ASYLUM HYPOTHECICAL SCENARIO

Question A

• Are there any bars to asylum implicated in this case?

  • If so, how would you address them?

Question B

• Assuming David is eligible for asylum, answer the following:

  • i. What enumerated grounds are implicated, and which is the strongest?

  • ii. Can David establish that the harm he faced rises to the level of persecution?

  • iii. What arguments would be made to show that David’s fear of returning to Monduria is well-founded?

Question C

• If David is denied asylum and related relief, what options might he pursue to preserve the opportunity for future admission to the U.S.?