The Seventh Circuit has once again clarified the standard of proof for protection under the Convention Against Torture.  It again that it had previously held that standard does not call for a literal calculation of a greater than 50% chance of harm, but rather, a qualitative assessment that here is a substantial risk of harm to the petitioner.  "Does the risk exceed 50%? What if there is a 20% risk of death and a 40% risk of bodily injury? Is that 'more likely than not' when neither risk exceeds 50%? Does a 20% risk of death exceed a 60% risk of losing a limb? Similar questions are easy to spin out. The panel in Rodriguez-Molinero stated that a statistical requirement cannot be taken seriously and that the best an agency or court can do is look for substantial risk. 'More likely than not' is the standard burden in civil litigation and does not impose a statistical or quantitative requirement in a tort or contract suit any more than in a removal proceeding. Our opinion in Rodriguez-Molinero did not suggest that 'substantial risk' means something more than the 'more likely than not' standard. It was designed, rather, as a non-quantitative restatement of that standard. If there is any gap between the two, it is in the direction of lenience to aliens, potentially treating (say) a moderate risk of death as equivalent to a much greater risk of being beaten up, and treating either as enough to allow the agency to permit an alien to stay in this nation."

The full text of Perez-Montes v. Sessions can be found here: