An individual will be found to have a credible fear of torture if he or she establishes that there is a “significant possibility” that he or she could establish in a full hearing before an Immigration Judge that he or she would be subject to torture, as defined in the Convention Against Torture and as modified in 8 CFR 208.18, if returned to his or her country.
The definition of torture, as defined in Article 1 of the Convention and modified by the U.S. ratification document is:
- severe pain or suffering, whether physical or mental
- 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
- intimidating or coercing him or her or a third person, or
- for any reason based on discrimination of any kind
- by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
The U.S. implementation of the Convention Against Torture also requires that the individual be in the torturer’s control or custody, and that harm arising only from, inherent in, or incidental to lawful sanctions generally is not torture.
See 8 CFR 208.18(a) for more information on the definition of torture.