Federal court reverses BIA on standard to show likelihood of torture if immigrant sent back home

The Ninth Circuit Court of Appeals issued an en banc ruling last week on the standard to be used in assessing claims for protection under the Convention Against Torture.  In a 6-5 decision, the court overruled four prior decisions which had addressed federal regulations implementing the United States’ participation in the Convention Against Torture.

Specifically, the Court held that its prior decisions conflicted with the regulations governing internal relocation of those seeking CAT protection. According to the majority, the prior cases were inconsistent with 8 CFR 1208.16(2) and (3) because they incorrectly required the person seeking CAT protection to prove that they couldn’t simply live in another part of their home country.

The Court said that showing the inability to relocate is not an element of the regulation.  The Court sent the case back to the Board of Immigration Appeals to reconsider.

According to the Associated Press, Roberto Maldonado entered the US as a child in 1966 and became a lawful permanent resident.  But after a burglary conviction, he lost status and was deported to Mexico.  There, he was subjected to beatings and torture by local police.  He fled to the U.S. three times and was deported each time.  Each time he was deported, he suffered the same brutal fate.  The immigration judge believed his claims, but believed that the Mexican national had to prove that he couldn’t live somewhere else in Mexico.  The BIA agreed, but now the Ninth Circuit has reversed that ruling.

It remains to be seen what impact this case will have in other parts of the country.

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