What counts as torture under these rules?
The bar is high, and being mistreated is not enough. Torture is severe physical or mental pain intentionally inflicted for a purpose such as forcing a confession, punishing, intimidating or coercing, or for a reason based on discrimination. It must be directed at a person in the offender's custody or physical control. Mental harm counts only if it is prolonged and results from causes such as a threat of imminent death. Lawful sanctions do not count, unless they defeat the purpose of the Convention. Poor prison conditions alone usually fail: in 2025 the Board reversed a grant for detention in Haiti because the record did not show the harsh conditions were specifically intended to torture. So describe specific acts, by whom, and for what purpose. If you were beaten during an interrogation, say what they demanded and put that in your Form I-589 declaration.
How likely does torture have to be, and how do I show it?
More likely than not. In 2025 the Board held that a judge used the wrong test by asking whether a person "could be" tortured. You do not have to show any link to race, religion or politics, which is why this claim survives when withholding of removal fails. The judge must weigh all evidence, including past torture, the chance of relocating safely, and mass human rights violations. In practice, recent decisions go against broad claims. In 2025 the Board reversed a grant for an applicant who feared Russia because predictions of harm over his travel to the United States and support for Ukraine were speculative. Build the chain step by step: who knows about you, why they would act, what they did to people in your position, and what has already happened to you. See our merits hearing guide for how testimony is tested.
What if the danger comes from a gang, a family or a private group?
This is the hardest version of the claim. Torture must be inflicted by, at the instigation of, or with the consent or acquiescence of a public official. Acquiescence means the official was aware of the activity beforehand and then failed a legal duty to intervene. In the Ninth Circuit, which covers California, that takes awareness, not actual knowledge, so officials who deliberately look away can qualify. The Eleventh Circuit, which covers Florida, held in 2021 that police trying to fight a gang was dispositive even if they failed. The Board held in 2025 that this claim demands more government involvement than the "unable or unwilling" test used for asylum, and in 2026 that government steps against criminal groups weigh against acquiescence even when they have not fully worked. Collect proof of what officials knew and did: police reports, refusals to act, and links between the attackers and the authorities. A report showing general corruption will not do this alone.
Could I be expected to move somewhere safer in my country?
Expect this question, and know that the rule depends on where your case is heard. The regulation lists the chance of relocating as evidence to consider. In the Ninth Circuit, which covers California, the full court held in 2015 that neither side carries a burden on relocation and that you need not prove it is impossible; the judge simply weighs that evidence in deciding whether torture is more likely than not. The Board, however, reversed a grant in 2026 partly because the record did not show the applicant could not relocate within the country. So address it head-on wherever you are. Show whether those you fear can reach you elsewhere: a national government, security service or wanted list, for instance, differs from a local threat. Note any time you tried living elsewhere and what happened, and prepare to answer the question at your hearing.
What is the difference between withholding and deferral under the Convention?
Both block removal to the country where torture is likely. Withholding under the Convention is denied to people who fall within the mandatory bars, such as those convicted of a particularly serious crime or who persecuted others. If you are likely to be tortured but barred, the judge must grant deferral instead, so a serious record does not end the claim. Deferral is weaker. It gives no lawful status, does not necessarily release you from custody, and can end at any time. DHS may ask for a new hearing with new evidence, and you then have 10 calendar days to supplement, or 13 if the notice was mailed, and you bear the burden again. Diplomatic assurances from your country can also end the claim. You may be removed to a different country at any time, so read our note on third-country removal as well.
What mistakes can end my claim while it is pending?
Three routine mistakes cost people protection. First, travel. The I-589 instructions presume you abandoned your application if you leave without advance parole, and the Board held in 2026 that returning to the feared country, even on advance parole, abandons asylum, withholding and torture protection unless there were compelling reasons. Talk to a lawyer before any trip. Second, the fee. The Board held in 2026 that the Annual Asylum Fee does not reach this claim, but if your I-589 also asks for asylum, pay it anyway, because missing the deadline can end the asylum part. Third, your address. Hearing notices go to the last address on file, so file Form EOIR-33 with the court within 5 days of any move. Missing a hearing can bring an in absentia removal order.
How do I apply, and can I appeal if I lose?
Use Form I-589 and check the Convention Against Torture box at the top of page 1. The form is also considered under the Convention if your evidence indicates you may be tortured, but do not rely on that. The one-year deadline does not apply. A judge decides. As of October 2026, an appeal on Form EOIR-26 must reach the Board within 30 days, so send it well before the last day. If the Board rules against you, a petition for review is due in the federal court of appeals within 30 days of the final order. The Supreme Court held in Nasrallah v. Barr that this court may review factual challenges to a torture decision, even for some people with criminal convictions. If your order is already final and your country has changed, see motions to reopen. Ace Immigration's removal defense page explains how we approach these claims; request a consultation and bring any medical records and reports of what happened to you.