A Criminal Conviction Does Not End Protection Against Torture

Why a final order of removal does not end protection under the Convention Against Torture.

Public discussion of deportation often runs two questions together: whether a person may be removed from the United States, and where the person may be sent. The answer to the first can turn on a criminal record. As the Congressional Research Service has summarized it, the Administration justifies removals to third countries as necessary for removing people, “particularly those with criminal records,” who cannot be returned to their home countries. A conviction and a final order of removal can carry real legal weight. Neither, on its own terms, settles whether the government may send a person to a country where he or she is likely to be tortured.

Federal law keeps the two questions apart. A person convicted of a particularly serious crime can still qualify for protection under the Convention Against Torture. Acting under a 1998 statute, the agencies that administer the Convention created a form of protection, deferral of removal, for people whose records bar them from other relief, and federal courts of appeals have applied that rule. A conviction can supply the ground for removing someone from the United States. It does not supply permission to send that person to torture.

This first part sets out that distinction from the 1998 statute that implements Article 3 of the Convention, the regulations issued under it, a published decision of the Fifth Circuit, three decisions of the Eleventh Circuit, and the Supreme Court’s ruling in Nasrallah v. Barr. A person can be lawfully removable from the United States and, at the same time, protected by law against removal to a country where torture is likely.

A final removal order is not the end of the inquiry

The Immigration and Nationality Act makes noncitizens removable for specified crimes, among them aggravated felonies and crimes involving moral turpitude. The government charges removability before an immigration judge, and if the charge is sustained and relief is denied, the judge orders the person removed. Once the order is final, the statute directs the government to carry out the removal, within the limits the law places on it.

An order of removal does not, however, mean that the person may be sent anywhere. A person can be under an enforceable order of removal and at the same time hold protection against removal to a particular country, because an immigration judge or the Board of Immigration Appeals found that he or she would more likely than not be tortured there. The two determinations do not contradict each other. They answer different questions: whether the person may remain in the United States, and whether the government may send the person to a named country.

The Supreme Court drew that line in Nasrallah v. Barr (the Court’s opinion; the Coalition’s copy). Writing for the Court, Justice Kavanaugh noted the government’s own acknowledgment that “a CAT order does not disturb the final order of removal.” An order granting protection, he explained, “means only that, notwithstanding the order of removal, the noncitizen may not be removed to the designated country of removal, at least until conditions change in that country.” In the Coalition’s reading, the power to remove and the obligation not to return a person to torture therefore have to be read together.

Congress implemented the Convention, and the Convention has no criminal exception

The United States ratified the Convention Against Torture in October 1994, subject to reservations, understandings and declarations. Article 3 provides: “No State Party shall expel, return (refouler) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” The United States understands that phrase to mean “if it is more likely than not that he would be tortured,” and that is the test American adjudicators apply.

Article 3 contains no exception for people convicted of crimes or regarded as threats to security. Refugee law has one. Article 33(2) of the 1951 Refugee Convention, to whose 1967 Protocol the United States is a party, withdraws its protection from a refugee who, “having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country,” and the criminal bar to withholding in American law follows that language. The Convention Against Torture has no counterpart.

Because the United States declared, as a condition of the Senate’s consent, that Articles 1 through 16 of the Convention are not self-executing, the protection reaches immigration cases through legislation. Congress supplied it in section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998, printed as a note to 8 U.S.C. § 1231. Section 2242(a) provides: “It shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.” The provision is framed as a statement of policy, and section 2242(d) confines judicial review of claims under it to the review of a final order of removal; the regulations add that they create no private right of action (8 C.F.R. § 1208.18(e)). Those limits shape where and how a claim may be heard. They do not alter what the policy requires.

Congress did not overlook criminal records. Section 2242(c) directed the agencies, “[t]o the maximum extent consistent with the obligations of the United States under the Convention,” to exclude from the protection of the regulations the people described in 8 U.S.C. § 1231(b)(3)(B): those who took part in the persecution of others, those convicted of a particularly serious crime and found to be a danger to the community, those believed to have committed a serious nonpolitical crime abroad, and those regarded as a danger to national security. When the Justice Department issued the regulations in February 1999, it concluded that the treaty left no room for a complete exclusion. Article 3, the 1999 rule explained, “contains no exceptions to this mandate,” and nothing in the Senate’s conditions allows the United States to “exclude any person from Article 3’s prohibition on return because of criminal or other activity or for any other reason.” People covered by the bars would lose withholding, but their protection from return to torture, “as required by the Convention,” would continue in a narrower form: deferral of removal.

Withholding of removal under the Convention

An applicant who shows that “it is more likely than not that he or she would be tortured if removed to the proposed country of removal” is, in the words of 8 C.F.R. § 1208.16(c)(2) and (c)(4), “entitled to protection under the Convention Against Torture.” That protection takes the form of withholding of removal unless a mandatory bar applies. The bars are those of section 241(b)(3)(B) of the Act, including conviction of a particularly serious crime, and they are the same bars that apply to withholding under the statute itself. 8 C.F.R. § 1208.16(d)(2).

Deferral of removal under the Convention

A person who meets the torture standard but falls within a mandatory bar “shall be granted deferral of removal to the country where he or she is more likely than not to be tortured.” 8 C.F.R. § 1208.17(a). The regulation does not exclude people convicted of particularly serious crimes. It exists for them, and it is not an act of administrative grace: the regulation says “shall,” so once the legal requirements are met the immigration judge must grant it.

Deferral is a lesser protection, and the regulations say so. It “[d]oes not confer upon the alien any lawful or permanent immigration status in the United States,” it “[w]ill not necessarily result in the alien being released from the custody of the Service,” and it “[i]s effective only until terminated.” 8 C.F.R. § 1208.17(b)(1). It can be ended in three ways: by an immigration judge at a new hearing, on a government motion supported by evidence about the risk of torture that was not presented before, with the burden on the person; at the person’s own request; or by the Attorney General on the strength of diplomatic assurances forwarded by the Secretary of State, after which the claim “shall not be considered further by an immigration judge, the Board of Immigration Appeals, or an asylum officer.” 8 C.F.R. §§ 1208.17(d)-(f), 1208.18(c)(3). The 1999 rule called deferral “more easily and quickly terminated” than withholding. While a deferral order stands, however, the government may not remove the person to the country it names.

The Fifth Circuit: a particularly serious crime does not bar deferral

The Fifth Circuit applied these rules in Hammerschmidt v. Garland, a published decision of 28 November 2022 (the court’s opinion; the Coalition’s copy). Ornella Angelina Hammerschmidt, a native and citizen of Venezuela, had pleaded guilty in 2009 to making a false statement in an immigration petition, and later to one count of making a false claim to the Internal Revenue Service for a tax refund, for which she was sentenced to 48 months in prison. The immigration judge found her testimony not credible and held, in the alternative, that the tax conviction was an aggravated felony and a particularly serious crime, which made her ineligible for asylum and for withholding of removal. The Fifth Circuit upheld that ruling.

The court then turned to her claim for deferral, and began with the rule: “Deferral of removal under CAT differs from asylum and withholding of removal in that the conviction of a ‘particularly serious crime’ does not bar relief thereunder.” It denied the claim on the evidence: because the adverse credibility finding stood, the record did not compel a finding that she would more likely than not be tortured if returned to Venezuela.

The sentence is the court’s published statement of the rule in 8 C.F.R. § 1208.17(a), which the court cited for it. The disposition shows the rule at work. Her conviction disqualified her from asylum and withholding, and the court still decided her deferral claim on a single question: whether she had proved that torture was more likely than not.

The Eleventh Circuit, in unpublished decisions, says the same

In Bernez-Ibarra v. U.S. Attorney General, decided on 1 March 2022 (the court’s opinion; the Coalition’s copy), the petitioner, a native and citizen of Mexico, had a California conviction for first-degree residential robbery. The immigration judge found it to be a particularly serious crime, which made him ineligible for withholding under both the Act and the Convention. He sought deferral, pointing to the treatment of people with mental illness in Mexico and to his former gang affiliation. The court wrote: “A non-citizen convicted of a particularly serious crime (and thus ineligible for withholding of removal under CAT) may still be eligible for deferral of removal under CAT.” It denied the petition because the record did not compel a finding that he would more likely than not be tortured by, or with the acquiescence of, the Mexican government.

Khan v. U.S. Attorney General, decided on 21 July 2021 (the court’s opinion; the Coalition’s copy), is to the same effect. The petitioner, a Pakistani national with convictions for drug trafficking, had conceded through counsel that the bar applied and that he was eligible only for deferral. The court observed that a person barred from withholding “can still receive deferral of removal” on showing that torture is more likely than not, and denied the petition on the evidence.

Both decisions are unpublished and are not binding precedent in the Eleventh Circuit. They are cited here for what they show: a federal court of appeals deciding a deferral claim on the evidence of torture, separately from the conviction that ruled out withholding. That is the structure the regulations prescribe. A criminal record can determine which form of protection is available. It does not, by itself, take away the protection against torture.

The Supreme Court: a conviction does not bar review of the facts of a torture claim

Nasrallah itself concerned a man with a criminal record. Nidal Khalid Nasrallah, a native and citizen of Lebanon and a lawful permanent resident, pleaded guilty in 2013 to two counts of receiving stolen property and was sentenced to 364 days in prison. In the removal proceedings that followed, the immigration judge found that Hezbollah had tortured him before he came to the United States and that he would likely be tortured again, and granted protection that blocked his removal to Lebanon. The Board of Immigration Appeals rejected the torture finding, vacated that protection and ordered him removed to Lebanon. Justice Thomas’s dissent adds a detail the majority opinion does not mention: the immigration judge had found the conviction to be a particularly serious crime, which ruled out withholding under the Convention, so the protection at stake was deferral. The Eleventh Circuit declined to review his factual challenges, holding that the limits on review in 8 U.S.C. § 1252(a)(2)(C) and (D) barred them.

The Supreme Court reversed, seven to two, on what it called a narrow question: whether a court of appeals should review the facts underlying a CAT order not at all, or deferentially. A final order of removal decides whether a person must leave the United States; a CAT order decides whether the person may be sent to a particular country. Because the CAT order “does not merge into the final order of removal,” the limits on factual review of the removal order do not reach it: “[a] CAT order is distinct from a final order of removal and does not affect the validity of a final order of removal.” The Court added that it “would be easy enough for Congress to preclude judicial review of factual challenges to CAT orders,” but that “Congress has not done so.” It was careful about what the review involves. It is “highly deferential”: the agency’s “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”

The Court did not hold that everyone with a conviction is entitled to protection. It held that a conviction does not take away the courts’ power to review the facts on which protection was granted or denied. The Court treated the torture question as open to review after the government had established criminal grounds for removal. The register entry for Nasrallah sets out the decision in full.

Not every conviction has the same consequences

A related misconception is that any conviction automatically rules out asylum and withholding. The statute is more particular than that.

For asylum, every aggravated felony counts as a particularly serious crime. Under 8 U.S.C. § 1158(b)(2)(B)(i), a person “who has been convicted of an aggravated felony shall be considered to have been convicted of a particularly serious crime.” For withholding, the automatic rule is narrower. Under 8 U.S.C. § 1231(b)(3)(B), an aggravated felony counts automatically only when the person was sentenced to an aggregate term of imprisonment of at least five years. The same provision adds that this “shall not preclude the Attorney General from determining that, notwithstanding the length of sentence imposed, an alien has been convicted of a particularly serious crime.” For shorter sentences, the question is decided case by case.

The Eleventh Circuit set out the difference in Kemokai v. U.S. Attorney General, a published decision of 2 October 2023 (the court’s opinion; the Coalition’s copy). Mucktaru Kemokai’s Massachusetts conviction for armed robbery was an aggravated felony, so he was barred from asylum. “Withholding of removal is a somewhat different story,” the court wrote. Because his sentence was under five years, the conviction was not automatically a particularly serious crime for withholding, and at both parties’ request the court sent that claim back to the Board, so that it could consider an intervening decision in which the Attorney General concluded that mental health evidence can be considered in that determination. Hammerschmidt and Bernez-Ibarra show the other side of the same rule: in each, the sentence was under five years, and the immigration judge still found the crime particularly serious after examining it individually.

Even before deferral is reached, then, the claim that a conviction eliminates all relief misstates the statute. And a final removal order does not by itself settle whether a particular removal may lawfully be carried out.

Why the distinction matters for third-country removals

These rules matter most when the United States moves to remove people it has already protected. A person granted withholding or deferral usually remains under a final order of removal. The government can say, accurately, that the person has been ordered removed, and often that the person has a serious conviction. Neither statement shows that removal to a country where torture is likely would be lawful.

The regulations allow removal elsewhere. “Nothing in this section or § 1208.17 shall prevent the Service from removing an alien to a third country other than the country to which removal has been withheld or deferred.” 8 C.F.R. § 1208.16(f). That follows from the country-specific nature of the protection. The regulations also describe the alternative in particular terms. The notice an immigration judge must give a person granted deferral states that he or she “may be removed at any time to another country where he or she is not likely to be tortured,” 8 C.F.R. § 1208.17(b)(2), the words the Supreme Court quoted in Nasrallah, and the 1999 rule said that deferral does not alter the government’s ability to remove a person “to another country where he or she would not be tortured.” In the Coalition’s reading, the regulations contemplate a destination where torture is not likely, and nothing in them suggests that Article 3 lapses when the destination changes. Article 3 and section 2242(a) speak of any country where there are substantial grounds for believing a person would be tortured.

Officials describe these transfers as third-country removals. When a transfer leads to torture in the third country, or to the person’s return to the country a judge found unsafe, international law calls it refoulement. The UN Committee against Torture, in its General Comment No. 4, put it this way: a person at risk “should never be deported to another State from which the person may subsequently face deportation to a third State in which there are substantial grounds for believing that the person would be in danger of being subjected to torture.” The Committee’s general comments are its interpretation of the treaty; they do not bind American courts, but they state how the body charged with monitoring the Convention reads Article 3.

What notice, and what opportunity to raise a fear of the new country, the government must give before such a removal is now before the Supreme Court. In Department of Homeland Security v. D.V.D., No. 26-426, the Court had stayed an earlier injunction in June 2025; after the district court set aside the government’s third-country removal guidance in February 2026 and the First Circuit largely affirmed on 18 September 2026, the Court on 29 September stayed that judgment and agreed to hear the case, with argument set for 9 December 2026. Justices Sotomayor, Kagan and Jackson would have denied the stay. The Court will first consider whether the district court had jurisdiction and whether it could grant classwide relief, and then whether the guidance is lawful under 8 U.S.C. § 1231(b), the Due Process Clause, or the 1998 Act and its regulations. The guidance remains in effect while the case is pending. A Congressional Research Service report updated on 23 October 2026 describes the litigation, and the July 2025 ICE memorandum under which, if the State Department finds a country’s diplomatic assurances credible, “the alien may be removed without the need for further procedures.” The Coalition has reported the Supreme Court’s stay and set out what United States courts have held on removal to a third country.

The difficult cases are those in which the third country does not keep the person: it sends him or her on, or offers no lawful way to stay. Whether a destination is genuinely safe, and what the United States must do to find out before a transfer, is the subject of Part 2.

Public safety and protection against torture are not competing obligations

The government has legitimate responsibilities to enforce the immigration laws, protect public safety and carry out final orders of removal. People convicted of serious crimes face heavy immigration consequences: removal, bars to relief, and detention where the law authorizes it. Congress preserved that detention authority expressly in section 2242(e) of the 1998 Act, and the deferral regulation leaves it in place (8 C.F.R. § 1208.17(c)). Recognizing those powers does not require setting aside the prohibition on torture, and American law accommodates both. It permits the removal of people convicted of specified crimes while preserving their protection against removal to a country where torture has been found likely.

Conclusion: the law does not make torture a consequence of conviction

The claim that a criminal conviction leaves no protection against removal to torture is not consistent with the structure of American law. Congress implemented Article 3 by statute. The agencies created deferral of removal for people who meet the torture standard but are barred from withholding, because the treaty allows no exception. The Fifth Circuit has stated that rule in a published opinion, and the Eleventh Circuit has applied it in unpublished decisions on the claims of applicants barred from withholding. The Supreme Court has held that a CAT order is distinct from a final order of removal and that its factual basis remains open to judicial review when the person is removable because of a crime.

None of this creates a right to remain in the United States. Protection under the Convention is not a pardon, it does not reverse a conviction, and it carries no right to stay. It is a restriction on removal to a country where the risk of torture has been established. While the order stands, the government may not remove the person to that country, and officials may properly cite a conviction and a final order to explain why the person is removable. Those facts do not answer whether a particular destination is lawful.

The prohibition on torture is not reserved for people without convictions. It limits the government’s power even where the criminal and immigration laws authorize removal. A criminal conviction may justify deportation from the United States. It does not authorize sending anyone to torture.

Authorities and references

• Treaties: Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (UN Treaty Series text; status, with the United States’ reservations, understandings and declarations); Convention Relating to the Status of Refugees art. 33(2), July 28, 1951, 189 U.N.T.S. 150 (UN Treaty Series text); Protocol Relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267 (status); Comm. Against Torture, General Comment No. 4 (2017) on the Implementation of Article 3 of the Convention in the Context of Article 22, ¶ 12, U.N. Doc. CAT/C/GC/4 (Sept. 4, 2018) (UN document).
• Statutes: Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, div. G, subdiv. B, tit. XXII, § 2242, 112 Stat. 2681-822 (codified at 8 U.S.C. § 1231 note); 8 U.S.C. § 1231(a)(1)(A), (b)(3) (text of § 1231 and the § 2242 note); 8 U.S.C. § 1158(b)(2)(B)(i) (text); 8 U.S.C. § 1227(a)(2)(A) (text); 8 U.S.C. § 1252(a)(2)(C)-(D) (text).
• Regulations: 8 C.F.R. § 1208.16 (eCFR); 8 C.F.R. § 1208.17 (eCFR); 8 C.F.R. § 1208.18 (eCFR); Regulations Concerning the Convention Against Torture, 64 Fed. Reg. 8478, 8478, 8480-81 (Feb. 19, 1999) (interim rule) (Federal Register).
• Supreme Court: Nasrallah v. Barr, 590 U.S. 573, 575-78, 582-84, 587 (2020); id. at 590 (Thomas, J., dissenting) (slip opinion; preliminary print of the United States Reports; the Coalition’s copy); Dep’t of Homeland Sec. v. D.V.D., No. 26-426 (U.S. cert. granted and stay entered Sept. 29, 2026), argument set for Dec. 9, 2026 (docket).
• Courts of appeals: Hammerschmidt v. Garland, 54 F.4th 282 (5th Cir. 2022) (court’s copy; the Coalition’s copy); Kemokai v. U.S. Att’y Gen., 83 F.4th 886 (11th Cir. 2023) (court’s copy; the Coalition’s copy); Bernez-Ibarra v. U.S. Att’y Gen., No. 21-10279 (11th Cir. Mar. 1, 2022) (per curiam) (unpublished) (court’s copy; the Coalition’s copy); Khan v. U.S. Att’y Gen., No. 20-14182 (11th Cir. July 21, 2021) (per curiam) (unpublished) (court’s copy; the Coalition’s copy).
• Congressional research: Cong. Rsch. Serv., IF13295, Immigration Removals to Third Countries (updated Oct. 23, 2026) (copy read, at EveryCRSReport; the Coalition’s copy).
• On this site: Third-Country Removal Is a Pretext for Refoulement, Withholding and CAT Deferral: What the Protection Covers, and What It Does Not, what United States courts have held on removal to a third country, the Nasrallah register entry, the Supreme Court stay in D.V.D., the Convention Against Torture, refoulement, the laws that protect people from torture.