You are in removal proceedings, or someone you love is, and the country on the removal order is a place where you believe you will be tortured — by the police, by a cartel the police will not stand up to, by a government that has already hurt you once. Maybe you have already learned that asylum is out of reach: you missed the one-year filing deadline, or a criminal conviction bars you, or a judge simply did not believe your persecution claim fit the legal categories. Most people in that position have never heard of the third form of protection until a judge or an asylum officer mentions it. It is protection under the Convention Against Torture, usually shortened to CAT.
The United States ratified the United Nations Convention Against Torture and implemented its Article 3 non-return obligation through the Foreign Affairs Reform and Restructuring Act of 1998 and the regulations at 8 C.F.R. §§ 1208.16 through 1208.18. The promise at its core is narrow and absolute: the United States will not send a person to a country where it is more likely than not that person would be tortured. Unlike asylum, CAT protection does not care why you would be tortured. Unlike asylum, it is mandatory — no judge has discretion to deny it once you prove your case. And unlike asylum, it gives you almost nothing beyond the promise itself: no green card, no path to citizenship, no protection for your family.
This page explains what CAT protection is, what the law counts as torture, the standard of proof and how the Board of Immigration Appeals has been enforcing it in a run of recent precedent decisions, the Ninth Circuit rules that govern cases arising in Montana, the difference between CAT withholding and deferral of removal, and what a CAT claim looks like when it first appears in a credible fear interview at the border.
Three Protections, One Application
A single form — the Form I-589 — raises three distinct forms of protection: asylum, withholding of removal, and CAT protection. An immigration judge considers them in sequence. Asylum comes first because it is the most generous. If asylum is barred or denied, withholding of removal comes next, under a higher standard of proof but with no filing deadline and no discretionary denial. CAT comes last — the hardest standard, the narrowest grant, and the only one of the three that does not require the harm you fear to be connected to who you are.
A denial of one is not a denial of all. That sequencing is not a formality; it is the architecture of every protection case we file. Our asylum application guide covers the first protection in depth, and our withholding of removal page covers the second, including the Ninth Circuit's distinctive nexus standard. This page completes the set.
What the Law Means by "Torture"
Torture has a precise legal definition, set out at 8 C.F.R. § 1208.18(a), and it is narrower than the ordinary meaning of the word. Several elements have to be present at once.
Severe pain or suffering. Torture is "an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment that do not amount to torture." Beatings, harassment, discrimination, and even brutal prison conditions can all fall short of this line. Severe mental suffering counts too, but only in defined categories: prolonged mental harm caused by the threat of imminent death, threats of severe physical harm to the person or to someone else, or the use of mind-altering substances.
Specific intent. The torturer must specifically intend to inflict the severe pain or suffering. Harm that is an unintended byproduct — even foreseeable harm, even severe harm — is not torture under the regulation. This element decides more CAT cases than most people expect. Dangerous, overcrowded, disease-ridden prisons in the country of removal are not torture unless someone intends the suffering they inflict.
A proscribed purpose. The pain must be inflicted for a reason the regulation names: to obtain information or a confession, to punish, to intimidate or coerce, or for any reason based on discrimination of any kind. These purposes are broad — far broader than asylum's five protected grounds.
Custody or control. The victim must be in the torturer's custody or physical control.
Not lawful sanctions. Pain or suffering arising only from lawful sanctions — judicially imposed punishment, including the death penalty — is excluded, unless the sanction defeats the object and purpose of the Convention.
The Government Connection: State Action and Acquiescence
Torture qualifies for CAT protection only when it is inflicted "by, or at the instigation of, or with the consent or acquiescence of" a public official acting in an official capacity, or another person acting in an official capacity. Purely private violence — a gang, a cartel, an abusive family member — is never enough on its own. In private-actor cases, the fight is almost always over acquiescence.
Acquiescence has its own regulatory definition: a public official must be aware of the torturous activity beforehand — or remain willfully blind to it — and then breach a legal duty to intervene. Willful blindness means the official "was aware of a high probability of activity constituting torture and deliberately avoided learning the truth." Mistake, recklessness, or a negligent failure to inquire is not enough. The willful blindness standard has deep roots in this circuit: the Ninth Circuit adopted it in Zheng v. Ashcroft in 2003, rejecting a stricter actual-knowledge approach, and the current regulation now codifies it.
One more wrinkle matters in real cases: the corrupt official. Under the regulation and the Board's precedent in Matter of J-G-R-, a public official's violence counts only if the official acts under color of law — the key question is whether the official's government position is what made the conduct possible. A police officer who tortures freelance, with no connection to his badge, is treated like a private actor. But the analysis does not end there: a different official who consents to or acquiesces in that rogue officer's conduct supplies the state action. And in the Ninth Circuit, Xochihua-Jaimes v. Barr holds that acquiescence by low-level or rogue officials counts even where the national government formally opposes the cartels or the corruption — the national policy on paper does not defeat what local officials actually do.
No Protected Ground Required — Why CAT Reaches Cases Asylum Cannot
Asylum and withholding both require a nexus: the persecution must be on account of race, religion, nationality, membership in a particular social group, or political opinion. Whole categories of genuinely dangerous cases fail on nexus. The cartel that wants to kill you because you saw something, or because you cooperated with law enforcement, or because your family would not pay — none of that maps cleanly onto a protected ground, and asylum claims built on those facts lose on nexus with regularity.
CAT has no nexus requirement. The torturer's motive matters only to the extent it must fit one of the broad proscribed purposes — punishment, intimidation, coercion, discrimination of any kind. A person with no political profile, no religious claim, and no viable social group can still win CAT protection if the torture itself is more likely than not.
That is the opening. The trade is that everything else gets harder: the harm must rise to torture rather than persecution, the state-action requirement replaces nexus as the battleground, and the probability standard is the highest in protection law.
The Standard of Proof: More Likely Than Not
The applicant bears the burden of establishing that it is more likely than not — a greater than fifty percent chance — that he or she would be tortured if removed. Credible testimony alone can carry that burden without corroboration, though as a practical matter corroboration decides close cases. The regulation directs the judge to consider all evidence relevant to the possibility of future torture, including evidence of past torture, evidence about whether the applicant could relocate to a part of the country where torture is not likely, evidence of gross, flagrant, or mass violations of human rights, and any other relevant country conditions.
Two doctrines shape how that probability gets measured in cases arising here.
First, in the Ninth Circuit the risk is measured in the aggregate. Under Velasquez-Samayoa v. Garland, when an applicant faces potential torture from more than one source — say, a gang that targets deportees and police who target people with tattoos — the judge must ask whether all of the risks combined cross the fifty percent line, not whether each source does so on its own.
Second, speculation does not aggregate into proof. In Matter of J-F-F-, the Attorney General held that CAT eligibility "cannot be established by stringing together a series of suppositions" unless the evidence shows that each step in the chain of events is itself more likely than not to happen. If your theory is that you would be detained, and if detained then noticed by a particular group, and if noticed then handed over, and if handed over then tortured — every one of those links has to clear the bar.
The Board's 2025–2026 CAT Decisions: The Standard, Enforced
Anyone researching CAT protection right now needs to know that the law is in an enforcement phase. Beginning in the spring of 2025, the Board of Immigration Appeals issued an unusual run of precedential CAT decisions — more than ten in under fourteen months — and nearly all of them sustained government appeals of immigration judge grants. Reading them together, the message to immigration judges is unmistakable: apply the exact standard, find each fact, and grant only on particularized proof.
Matter of N-N-B-, which the Attorney General designated as precedent, is the centerpiece. An immigration judge granted CAT deferral to a Russian man who feared conscription-related abuse, finding he "could be" subject to torture. The Board reversed: "could be" is the wrong legal standard — the finding must be that torture is more likely than not — and a grant cannot rest on a chain of suppositions where the evidence does not establish each step. The Board took the occasion to reaffirm Matter of J-F-F- as the governing framework.
The rest of the line fills in what "particularized proof" means:
- In Matter of A-A-R-, a former gang member argued he would be tortured in El Salvador's state-of-exception prisons. The Board held that generalized country-conditions evidence — even evidence of widespread abuse — does not carry the burden without proof that this applicant, in his individual circumstances, faces a more-likely-than-not risk.
- In Matter of S-S-, the Board reversed a grant built on Haiti's brutal detention conditions, because the judge never found the detention would be long-term and the record did not show the harsh conditions were specifically intended to inflict severe suffering. Specific intent, again.
- In Matter of J-C-A-G-, an applicant who had cooperated with United States law enforcement against a cartel lost because his fear rested on unsubstantiated statements from a coconspirator plus generalized evidence of cartel violence.
- In Matter of J-E-L-, decided in May 2026, the Board reversed a grant to a former informant who had received threats and survived a kidnapping in Mexico — emphasizing that he had lived in Mexico for thirteen years, had relocated away from trouble more than once, and had been able to file a report with the authorities, which cut against any finding that officials would acquiesce in his torture.
- In Matter of D-J-L-, the Board instructed judges to discount expert witnesses whose background and testimony show an unwillingness to consider contrary evidence — a warning shot about the country-conditions experts CAT cases often ride on.
One structural point runs through all of these decisions and matters enormously for strategy. The Board reviews an immigration judge's predictions about what will happen to a person — the factual findings — only for clear error. But whether those predicted facts legally amount to torture, and whether officials' predicted behavior legally amounts to acquiescence, are questions the Board decides fresh, with no deference. That division is why the government keeps winning these appeals, and it is why a CAT record has to be built so that the favorable findings are factual ones.
CAT in the Ninth Circuit: The Rules That Run in the Applicant's Favor
Montana removal cases are, by and large, heard by the Portland Immigration Court, though venue can vary — always confirm the assigned court on your hearing notice. Appeals go to the Board, and from there to the United States Court of Appeals for the Ninth Circuit. That matters because the Ninth Circuit has developed a body of CAT law that is measurably more favorable to applicants than the Board's baseline, and it binds every case arising here.
Relocation is a factor, not your burden. In Maldonado v. Lynch, the en banc Ninth Circuit overruled its own earlier cases and held that a CAT applicant does not bear the burden of proving that internal relocation is impossible. Evidence about relocation is simply one factor among all the evidence bearing on the likelihood of torture; no single factor is determinative. Compare that with Matter of J-E-L-, where the applicant's history of successful relocation inside Mexico helped sink his claim before the Board — the difference between relocation as one consideration and relocation as a hurdle is real, and in this circuit the applicant gets the better rule. And in Mbueno-Vita v. Blanche, decided in August 2026, the court reaffirmed that a person cannot safely relocate if they are forced to live in hiding or as a fugitive — four months a family spent hiding without incident did little to show that relocation was safe.
Aggregate risk. As discussed above, Velasquez-Samayoa requires the agency to combine all sources of torture risk before asking whether the fifty percent line is crossed.
Willful blindness and local officials. Zheng v. Ashcroft established the willful blindness standard for acquiescence, and Xochihua-Jaimes holds that awareness and willful blindness by low-level or rogue officials counts, national anti-corruption policy notwithstanding.
Specific intent is a factual question. In Guerra v. Barr, the Ninth Circuit held that whether officials act with the specific intent CAT requires is a factual finding the Board may review only for clear error. When an immigration judge finds intent in your favor, that finding is protected on appeal — another reason the record built before the immigration judge is everything.
All the evidence must actually be considered. Aguilar-Ramos v. Holder requires the agency to consider all evidence relevant to the possibility of future torture, including the country-conditions reports in the record; ignoring them is reversible error.
Statistics are not required. In Parada Calderon v. Blanche, decided in August 2026, the Ninth Circuit held that the Board “erred by imposing a quantitative evidence requirement” — there, brushing aside an expert's account of prison conditions on the ground that “anecdotes—no matter how disturbing—can’t substitute for quantitative evidence, which is what CAT requires.” The court traced that demand to a misreading of its own earlier decision in Benedicto v. Garland, explaining that Benedicto's reference to quantitative evidence “was merely a reference to the ‘more likely than not standard’” and that the court had never “announce[d] a rule that quantitative or statistical evidence is required under CAT.” Former immigration judges and former Board members filed an amicus brief documenting what the court called a “growing and troubling trend” in CAT adjudications: the demand for statistical proof. The decision came on a motion to reopen, where the applicant need only show a reasonable likelihood of success rather than prove the whole case — but the legal error it corrects is the one that decides merits hearings.
None of this makes the Ninth Circuit a soft forum. In Perez Cruz v. Bondi, decided in July 2025, the court upheld a CAT denial despite past cartel violence, pointing to the applicant's repeated safe returns to Mexico, the remoteness in time of the harm, and the speculative chain connecting past events to future torture. The favorable rules govern how the evidence is weighed; they do not supply the evidence.
Two Forms of CAT Protection: Withholding and Deferral
Winning a CAT case produces one of two forms of protection, and the difference matters most to people with criminal records.
CAT withholding of removal, under 8 C.F.R. § 1208.16(c), is the standard form. It is unavailable to people subject to the mandatory denial grounds that also bar statutory withholding — most importantly a conviction for a particularly serious crime, along with the persecutor, security, and serious-nonpolitical-crime bars. If a conviction is driving your case, our page on criminal convictions and immigration status explains how those bars are analyzed.
Deferral of removal, under 8 C.F.R. § 1208.17, exists because CAT's non-return promise has no exceptions at all. A person barred from every other protection — asylum, statutory withholding, CAT withholding — still cannot be sent to a country where torture is more likely than not. Deferral is what that person receives. It is protection in its rawest form, and the regulation is blunt about its limits. Deferral "[d]oes not confer upon the alien any lawful or permanent immigration status in the United States." It does not require release from detention — decisions about custody are made separately, and for clients from this region that has usually meant the Northwest ICE Processing Center in Tacoma; our page on immigration detention and bond covers that system. Deferral blocks removal only to the specific country where torture is likely; the government may remove the person to any third country willing to take them where torture is not likely. And it is built to be revisited: the government can move to terminate deferral at any time based on new evidence, and the immigration judge then decides the torture question fresh.
Both forms allow the person to live and work in the United States while the protection lasts. A person granted CAT withholding qualifies for an employment authorization document in the same category as statutory withholding grantees under 8 C.F.R. § 274a.12(a)(10). A person granted deferral typically obtains work authorization through the separate category tied to orders of supervision, 8 C.F.R. § 274a.12(c)(18). That category is the subject of a proposed federal rule published June 5, 2026, whose comment period closed that August and which is now awaiting final action. The proposal names deferral grantees specifically: it would make their work authorization discretionary rather than automatic and condition it on a finding that removal is impracticable because every country asked has refused to issue travel documents — a condition that sits awkwardly with deferral itself, which blocks removal to one country and leaves third-country removal open. As of September 2, 2026 nothing has been finalized, and a person granted CAT withholding remains on the (a)(10) category the rule does not touch. Anyone relying on a (c)(18) card should have current advice rather than an old article.
Neither form leads to a green card, brings a spouse or child under its umbrella, or permits international travel. In all of those respects CAT protection mirrors the limits of statutory withholding, which we cover in detail on the withholding of removal page.
CAT at the Border: The Credible Fear Screening
For many people, the first time CAT enters their case is not in a courtroom but in a detention facility near the border. A person subjected to expedited removal who expresses a fear of return is referred to a USCIS asylum officer for a credible fear interview, and under 8 C.F.R. § 208.30 the officer screens for a credible fear of persecution or torture — all three protections, in one screening.
We see a recurring pattern in clients who come to us after border detention: the asylum officer's written determination finds a credible fear based only on the torture screening. The officer concluded that the persecution theory was weak — almost always because the feared harm did not connect to a protected ground — but that the torture risk cleared the screening threshold. Clients often read a CAT-only determination as a verdict on their case. It is not, in either direction.
It is not a grant. The credible fear standard is a screening standard — a significant possibility of establishing eligibility — far below the more-likely-than-not showing the full case requires. A positive screening means the case proceeds; it does not predict the outcome.
And it is not a limitation. The full I-589 raises all three protections regardless of which theory carried the screening. A border interview, conducted through an interpreter days after arrival, with no documents and no lawyer, is not where nexus theories get developed. Facts that looked like unconnected criminal violence in a credible fear interview sometimes turn out, with counsel and country evidence, to support a particular social group or political opinion claim after all. When we take on a case that screened positive on CAT alone, we build the complete application — and we treat the credible fear record with care, because everything said in that interview will be compared against everything said later.
What a Winning CAT Case Requires
Reading the recent Board decisions honestly, a CAT case wins on specificity. The record has to establish, step by verifiable step: who would torture you; why you, as opposed to people generally situated like you; how they would learn you had returned; and why officials would participate, consent, or look away. Each link supported by evidence, not inference stacked on inference.
That translates into a documentary standard most people do not expect. Country-conditions evidence must be tied to your individual profile — the lesson of Matter of A-A-R- is that even overwhelming evidence of prison abuse loses without proof about what happens to someone like you. Expert testimony must come from experts who engage with contrary evidence — the lesson of Matter of D-J-L- is that a one-sided expert can be discounted entirely. Past torture should be documented medically and psychologically wherever possible, because it is the first factor the regulation lists and the hardest one to dismiss.
Candor requires saying plainly: CAT is the hardest of the three protections to win, and it is pressed most often precisely in the hardest cases — where asylum and withholding are barred, frequently by criminal convictions. That is not a reason to treat it as an afterthought. It is the reason to treat it as its own case, with its own evidence, built for the standard the Board is now enforcing. When we prepare an I-589, we develop the CAT claim alongside the asylum claim wherever the facts support it, because the day the other protections fall away is not the day to start building the record.
The Bottom Line
CAT protection is narrow, absolute, and unforgiving of thin records. It asks a different question than asylum — not who you are, but what will happen to you — and it answers to a different standard, enforced with new rigor by the Board since 2025 and tempered in this circuit by Ninth Circuit rules on aggregation, relocation, and acquiescence that give a well-built case a fair fight. If your situation involves fear of return, the time to understand which of the three protections your facts actually support is before the application is filed, not after a denial. The sequencing decisions made at intake — which theories to develop, which evidence to gather, whose claims to file — shape everything that follows in removal proceedings.
Immigration Law of Montana, P.C. handles asylum, withholding, and CAT cases throughout Montana and the surrounding region, including clients detained after border screening. If you are weighing these protections, a strategy consultation is where we map your facts against all three standards and build the plan. You can reach us through our contact page.
