The interim rule marks a departure from the standards governing asylum applications in two important respects.  First, the rule allows persons who fear being tortured abroad to file a claim for withholding of removal ("withholding") based on a ground not limited only to the five under which applicants for asylum may qualify for the relief—i.e., fear of persecution on account of race, religion, nationality, political opinion, or membership in a social group.  The claimant need only demonstrate that removal will likely result in his or her being tortured by or with the acquiescence of government officials and that the torture will be committed for any reason.   Second, for aliens who are statutorily barred from the relief of withholding of removal (i.e., those who have been convicted of serious crimes or have persecuted others), the interim rule has created a new category of relief, deferral of removal (DR).

Generally, a person’s eligibility for withholding or DR under the CAT will be determined by an immigration judge during removal/deportation proceedings.  The IJ first will determine whether the applicant is more likely than not to be tortured if she or he is removed from the U.S.  Although the burden of proof for demonstrating this likelihood rests with the applicant, the rule does allow that "the testimony of the applicant, if credible, may be sufficient to sustain the burden . . . without corroboration."  If the IJ finds that the applicant likely faces torture if removed and is not statutorily barred from withholding, the alien will be granted the relief.  If the applicant is barred from receiving withholding, the IJ will grant him or her DR.  The rule does not expand judicial review of denials by an IJ of either form of relief beyond levels currently available (i.e., in conjunction with review of a final order of removal).

Among the distinctions between withholding and DR, the rule’s preamble identifies the "mode of termination" as most important.  Under existing law, withholding can be terminated only when the INS moves to reopen the case, meets the standards for reopening, and establishes by a preponderance of the evidence that the alien is not eligible for withholding.  The standards for reopening in the withholding context require the INS to offer evidence that was previously unavailable and establishes a prima facie case for termination.  In the DR context, the INS must meet a lower threshold, which requires only that the evidence was not considered at the previous hearing and is relevant to the possibility that the alien would be tortured in the country of removal.

The rule also establishes special procedures, which are modeled on and amend the credible fear screening process currently in effect, for handling the cases of arriving aliens subject to expedited removal and aggravated felons.  Arriving aliens who tell the asylum officer that they fear being persecuted in their home country will now also be examined to determine whether they have a credible fear of torture.  An affirmative determination will be made if they show a "significant possibility" that they are eligible for withholding or DR under the CAT.  In that event, the case will be referred to an IJ for proceedings, at which the alien will be able to assert claims to relief available under the CAT.  The same process will apply to aggravated felons, except that they must meet a higher screening standard (i.e., they must show a "reasonable possibility" that they will persecuted or tortured) to qualify to have their cases referred to an IJ.

In addressing cooperation between the Departments of State and Justice, the rule permits the secretary of state to forward to the attorney general assurances the former has obtained from the government of a specific country that an alien would not be tortured if he or she were removed to that country.  If the attorney general, in consultation with the secretary of state, finds the assurances sufficiently reliable to allow the alien’s removal to that country, the rule provides that "the alien’s claim for protection under the CAT shall not be considered further by an IJ, the BIA, or an asylum officer."  Disturbingly, the rule does not acknowledge the possibility that, in some cases, attempts to obtain assurances may actually increase the likelihood that the applicant or his or her family members abroad will be tortured.

Since the rule was published, the INS finalized and disseminated supplemental instructions for Form I-589, the application for asylum and withholding of removal, pertaining to CAT claims.  These instructions inform applicants that the I-589 form will be considered an application for withholding of removal under the CAT if the applicant tells the IJ that he or she would like to be considered for withholding relief under the CAT.  The instructions also describe the nature of withholding of removal under the CAT and explain which persons are eligible for relief and which persons are barred.

Although the U.S. has been obliged to observe Article 3 of the CAT since 1994, the U.S.’s CAT-related obligations were not made fully a part of U.S. law until President Bill Clinton signed the FARRA last fall.  The statute made Article 3 binding on all government officials and in all legal proceedings relating to removal.

Before the rule was issued, the INS had been processing CAT claims using informal procedures established by two internal INS memoranda.  As we noted in the last issue, upon this rule’s effective date, it entirely replaced the informal procedures, requiring that pending claims made under the latter be reviewed under the new regulations.   Further, individuals under final orders of deportation, exclusion, or removal that became final prior to the interim rule’s Mar. 22, 1999, effective date must file motions to reopen seeking CAT relief by June 21, 1999.  The rule provides that such motions will not be subject to the time and numerical limitations that ordinarily apply to motions to reopen.  And the applicant will not be required to show "that the evidence sought to be offered was unavailable and could not have been . . . presented at the former hearing."

[64 Fed. Reg. 8,478–96 (Feb. 19, 1999); INS Form I-589S (Mar. 22, 1999), reprinted in 76 Interpreter Releases 577 (Apr. 12, 1999).]