[Code of Federal Regulations]

[Title 8, Volume 1]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 8CFR208.18]



[Page 157-159]

 

                     TITLE 8--ALIENS AND NATIONALITY

 

               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY

 

PART 208_PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL--Table of 

Contents

 

               Subpart A_Asylum and Withholding of Removal

 

Sec. 208.18  Implementation of the Convention Against Torture.



    (a) Definitions. The definitions in this subsection incorporate the 

definition of torture contained in Article 1 of the Convention Against 

Torture, subject to the reservations, understandings, declarations, and 

provisos contained in the United States Senate resolution of 

ratification of the Convention.

    (1) Torture is defined as any act by which severe pain or suffering, 

whether physical or mental, is intentionally inflicted on a person for 

such purposes as obtaining from him or her or a third person information 

or a confession, punishing him or her for an act he or she or a third 

person has committed or is suspected of having committed, or 

intimidating or coercing him or her or a third person, or for any reason 

based on discrimination of any kind, when such pain or suffering is 

inflicted by or at the instigation of or with the consent or 

acquiescence of a public official or other person acting in an official 

capacity.

    (2) 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.

    (3) Torture does not include pain or suffering arising only from, 

inherent in or incidental to lawful sanctions. Lawful sanctions include 

judicially imposed sanctions and other enforcement actions authorized by 

law, including the death penalty, but do not include sanctions that 

defeat the object and purpose of the Convention Against Torture to 

prohibit torture.

    (4) In order to constitute torture, mental pain or suffering must be 

prolonged mental harm caused by or resulting from:

    (i) The intentional infliction or threatened infliction of severe 

physical pain or suffering;

    (ii) The administration or application, or threatened administration 

or application, of mind altering substances or other procedures 

calculated to disrupt profoundly the senses or the personality;

    (iii) The threat of imminent death; or

    (iv) The threat that another person will imminently be subjected to 

death, severe physical pain or suffering, or the administration or 

application of mind altering substances or other procedures calculated 

to disrupt profoundly the sense or personality.

    (5) In order to constitute torture, an act must be specifically 

intended to inflict severe physical or mental pain or suffering. An act 

that results in unanticipated or unintended severity of pain and 

suffering is not torture.

    (6) In order to constitute torture an act must be directed against a 

person in the offender's custody or physical control.

    (7) Acquiescence of a public official requires that the public 

official, prior to the activity constituting torture, have awareness of 

such activity and thereafter breach his or her legal responsibility to 

intervene to prevent such activity.

    (8) Noncompliance with applicable legal procedural standards does 

not per se constitute torture.

    (b) Applicability of Sec. Sec. 208.16(c) and 208.17(a)--(1) Aliens 

in proceedings on or after March 22, 1999. An alien who is in exclusion, 

deportation, or removal proceedings on or after March 22, 1999 may apply 

for withholding of removal under Sec. 208.16(c), and, if applicable, 

may be



[[Page 158]]



considered for deferral of removal under Sec. 208.17(a).

    (2) Aliens who were ordered removed, or whose removal orders became 

final, before March 22, 1999. An alien under a final order of 

deportation, exclusion, or removal that became final prior to March 22, 

1999 may move to reopen proceedings for the sole purpose of seeking 

protection under Sec. 208.16(c). Such motions shall be governed by 

Sec. Sec. 3.23 and 3.2 of this chapter, except that the time and 

numerical limitations on motions to reopen shall not apply and the alien 

shall not be required to demonstrate that the evidence sought to be 

offered was unavailable and could not have been discovered or presented 

at the former hearing. The motion to reopen shall not be granted unless:

    (i) The motion is filed within June 21, 1999; and

    (ii) The evidence sought to be offered establishes a prima facie 

case that the applicant's removal must be withheld or deferred under 

Sec. Sec. 208.16(c) or 208.17(a).

    (3) Aliens who, on March 22, 1999, have requests pending with the 

Service for protection under Article 3 of the Convention Against 

Torture. (i) Except as otherwise provided, after March 22, 1999, the 

Service will not:

    (A) Consider, under its pre-regulatory administrative policy to 

ensure compliance with the Convention Against Torture, whether Article 3 

of that Convention prohibits the removal of an alien to a particular 

country, or

    (B) Stay the removal of an alien based on a request filed with the 

Service for protection under Article 3 of that Convention.

    (ii) For each alien who, on or before March 22, 1999, filed a 

request with the Service for protection under Article 3 of the 

Convention Against Torture, and whose request has not been finally 

decided by the Service, the Service shall provide written notice that, 

after March 22, 1999, consideration for protection under Article 3 can 

be obtained only through the provisions of this rule.

    (A) The notice shall inform an alien who is under an order of 

removal issued by EOIR that, in order to seek consideration of a claim 

under Sec. Sec. 208.16(c) or 208.17(a), such an alien must file a 

motion to reopen with the immigration court or the Board of Immigration 

Appeals. This notice shall be accompanied by a stay of removal, 

effective until 30 days after service of the notice on the alien. A 

motion to reopen filed under this paragraph for the limited purpose of 

asserting a claim under Sec. Sec. 208.16(c) or 208.17(a) shall not be 

subject to the requirements for reopening in Sec. Sec. 3.2 and 3.23 of 

this chapter. Such a motion shall be granted if it is accompanied by a 

copy of the notice described in paragraph (b)(3)(ii) or by other 

convincing evidence that the alien had a request pending with the 

Service for protection under Article 3 of the Convention Against Torture 

on March 22, 1999. The filing of such a motion shall extend the stay of 

removal during the pendency of the adjudication of this motion.

    (B) The notice shall inform an alien who is under an administrative 

order of removal issued by the Service under section 238(b) of the Act 

or an exclusion, deportation, or removal order reinstated by the Service 

under section 241(a)(5) of the Act that the alien's claim to withholding 

of removal under Sec. 208.16(c) or deferral of removal under Sec. 

208.17(a) will be considered under Sec. 208.31.

    (C) The notice shall inform an alien who is under an administrative 

order of removal issued by the Service under section 235(c) of the Act 

that the alien's claim to protection under the Convention Against 

Torture will be decided by the Service as provided in Sec. 208.18(d) 

and 235.8(b)(4) and will not be considered under the provisions of this 

part relating to consideration or review by an immigration judge, the 

Board of Immigration Appeals, or an asylum officer.

    (4) Aliens whose claims to protection under the Convention Against 

Torture were finally decided by the Service prior to March 22, 1999. 

Sections 208.16(c) and 208.17 (a) and paragraphs (b)(1) through (b)(3) 

of this section do not apply to cases in which, prior to March 22, 1999, 

the Service has made a final administrative determination about the 

applicability of Article 3 of the Convention Against Torture to the case 

of an alien who filed a request with the Service for protection under 

Article 3. If, prior to March 22, 1999, the Service determined



[[Page 159]]



that an applicant cannot be removed consistent with the Convention 

Against Torture, the alien shall be considered to have been granted 

withholding of removal under Sec. 208.16(c), unless the alien is 

subject to mandatory denial of withholding of removal under Sec. 

208.16(d)(2) or (d)(3), in which case the alien will be considered to 

have been granted deferral of removal under 208.17(a). If, prior to 

March 22, 1999, the Service determined that an alien can be removed 

consistent with the Convention Against Torture, the alien will be 

considered to have been finally denied withholding of removal under 

Sec. 208.16(c) and deferral of removal under Sec. 208.17(a).

    (c) Diplomatic assurances against torture obtained by the Secretary 

of State. (1) The Secretary of State may forward to the Attorney General 

assurances that the Secretary has obtained from the government of a 

specific country that an alien would not be tortured there if the alien 

were removed to that country.

    (2) If the Secretary of State forwards assurances described in 

paragraph (c)(1) of this section to the Attorney General for 

consideration by the Attorney General or her delegates under this 

paragraph, the Attorney General shall determine, in consultation with 

the Secretary of State, whether the assurances are sufficiently reliable 

to allow the alien's removal to that country consistent with Article 3 

of the Convention Against Torture. The Attorney General's authority 

under this paragraph may be exercised by the Deputy Attorney General or 

by the Commissioner, Immigration and Naturalization Service, but may not 

be further delegated.

    (3) Once assurances are provided under paragraph (c)(2) of this 

section, the alien's claim for protection under the Convention Against 

Torture shall not be considered further by an immigration judge, the 

Board of Immigration Appeals, or an asylum officer.

    (d) Cases involving aliens ordered removed under section 235(c) of 

the Act. With respect to an alien terrorist or other alien subject to 

administrative removal under section 235(c) of the Act who requests 

protection under Article 3 of the Convention Against Torture, the 

Service will assess the applicability of Article 3 through the removal 

process to ensure that a removal order will not be executed under 

circumstances that would violate the obligations of the United States 

under Article 3. In such cases, the provisions of Part 208 relating to 

consideration or review by an immigration judge, the Board of 

Immigration Appeals, or an asylum officer shall not apply.

    (e) Judicial review of claims for protection from removal under 

Article 3 of the Convention Against Torture. (1) Pursuant to the 

provisions of section 2242(d) of the Foreign Affairs Reform and 

Restructuring Act of 1998, there shall be no judicial appeal or review 

of any action, decision, or claim raised under the Convention or that 

section, except as part of the review of a final order of removal 

pursuant to section 242 of the Act; provided however, that any appeal or 

petition regarding an action, decision, or claim under the Convention or 

under section 2242 of the Foreign Affairs Reform and Restructuring Act 

of 1998 shall not be deemed to include or authorize the consideration of 

any administrative order or decision, or portion thereof, the appeal or 

review of which is restricted or prohibited by the Act.

    (2) Except as otherwise expressly provided, nothing in this 

paragraph shall be construed to create a private right of action or to 

authorize the consideration or issuance of administrative or judicial 

relief.



[64 FR 8490, Feb. 19, 1999; 64 FR 13881, Mar. 23, 1999]