Using Country Conditions Evidence to Improve Appellate Review of Convention Against Torture Cases

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While the Trump Administration’s transit ban was in force, many would-be asylum seekers had to turn to other forms of relief. In particular, many such individuals sought withholding of removal under the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Those eligible for protection under the CAT are not deported because it is improper - both under U.S. and inter-national law - to return an individual to a country where they are likely to be tortured. Several NGOs report high levels of torture occurring around the world, yet the United States consistently finds upwards of 96%-98% of CAT applicants ineligible for relief every year. The Tenth Circuit is no exception; a review of recent cases shows a reluctance by the court to reverse denials of CAT protection. However, an assessment of the Tenth Circuit’s own precedent, the legislative intent behind the implementation of the CAT, and international norms demonstrates that the Tenth Circuit’s reluctance is ill-placed. Further, the Supreme Court’s ruling in Nasrallah v. Barr clarifies that circuit courts may review, under a “substantial evidence” standard, factual challenges to CAT orders in cases where the applicant has prior convictions. This decision provides an opportunity for the Tenth Circuit to clarify the CAT standard and to provide greater consistency among CAT determinations.

This Article proposes that country conditions evidence be accorded greater importance in conducting CAT determinations and reviews. In many cases, objective reporting regarding country conditions will pro-vide a more reliable indication of an individual’s likelihood of torture than will applicant testimony, which is often influenced by fear, a mis-understanding of the U.S. immigration system, a lack of representation, and cultural dissonance. Relying more heavily on country conditions will produce more consistent outcomes for CAT claims, particularly for claims brought by those from the most volatile regions of the world. This reliance on objective evidence will further enable the Tenth Circuit to review lower court decisions more effectively. Given the increased importance of CAT relief in a time when most immigrants are barred from seeking asylum, this would allow for a legal approach that meets the moral and legal obligations that require the United States to not deport individuals to great harm.

Originally published by the Denver Law Review - Issue 98.2.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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