Immigration Relief Under the Convention Against Torture
Congressional Testimony of Dan Stein, Executive Director, Federation for American Immigration Reform
Mr. Chairman and members of the subcommittee, thank you for the opportunity to present the views of the Federation for American Immigration Reform (FAIR) on the difficult issues pertaining to U.S. implementation of the Convention against Torture (CAT). FAIR is a national, not-for-profit organization of concerned citizens nationwide promoting better immigration controls and substantial reductions in overall immigration for the benefit of all Americans. FAIR does not receive any federal grants, contracts or subcontracts. My name is Dan Stein, and I am FAIR's Executive Director.
Our interest in today's hearing relate to our concern that U.S. law promote substantial justice in its implementation of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. As a general proposition, our organization supports the intentions and goals of the Convention against Torture. This is an important treaty. Opposition to torture has long-standing support as part of our nation's founding principles as articulated in the Eighth Amendment to the Constitution of the United States. Nevertheless, even the best intentions can have unintended consequences. The United States has a well-developed system to entertain refugee and asylum claims. We cannot believe it was the intention of those drafting the convention to override the sovereign prerogative of any nation to rid itself of aliens judged a threat to public safety, security or the best interests of the nation.
Mr. Chairman, FAIR testified on September 28, 2000 before this committee raising a variety of concerns, many of which have been borne out by subsequent events. The CAT was signed by the United States in 1988 and became effective for this country March 22, 1999. We argued then, and continue to argue, that CAT was not designed to create a new avenue for immigration relief that would allow people to avoid consequences associated with past bad behavior - including serious human rights abuses, serious criminal activity, persecution, violations of religious freedom, offenses against humanity, terrorism, genocide and torture. This is what current regulations provide.
The Senate Report accompanying treaty ratification (Senate Report 101-30) (1990) stated CAT's purposes as a treaty. There is no mention of the nation creating a new right of action for those unsuccessful in obtaining asylum under U.S. law. Rather, the organic purpose of CAT is to create modifications to each nation's criminal law to eliminate torture (in our case here in the U.S.) and provide a legal recourse for those who have suffered torture at the hands of state actors.
Evidence for this proposition can be found in the fact that CAT has no provision for exclusion of criminals and other serious human rights violators from its protection. As now interpreted by immigration courts, the convention and its implementing rules override provisions that would cause their removal. This is probably because CAT was not intended to become part of any nation's domestic immigration law procedures. Prior to CAT - and FAIR believed during deliberations leading up to the treaty - the existing rules under INA §241(b)(3) governing "withholding of removal" would cover torture claims while retaining ineligibility for those aliens who are aggravated felons or otherwise undesirable. We believe that was the prevailing view at the time. There was certainly no broad public debate while CAT was being deliberated in the Senate to suggest that this treaty would force a major rewrite of U.S. asylum and refugee law. I refer to my previous testimony for discussion of the deliberations leading to the current CAT regulations.
Proponents of existing regulations view the Torture Convention as creating an absolute bar to refoulement for anyone who makes a torture claim, even if the person operated a death camp in World War II, ordered the mass murder of millions or sought to destroy an entire people. While this continues to be their position, the definition of torture is persistently sought to be expanded to include a variety of private acts claimed to be state action via the tenuous route of asserting these private acts took place via the "consent or acquiescence" of a public official. (To support our claim that the standard for official "consent or acquiescence" is expanding, I refer to recent federal appellate court decisions that have begun to assert that Congress did, in fact, intend to prevent us from removing criminal aliens or serious human rights abusers; in a recent case by one who claims to have been threatened abroad with violence by mafias, who the alien himself had previously hired as smugglers - so long as the local police in the native country are alleged as "aware" of such threats and fail to provide protection (Li Chen Zheng v. Ashcroft No. 02-70193, 9th Cir. June 18, 2003). See alsoZubeda v. Ashcroft (No. 02-2868, 3rd Cir. June 23, 2003) [adverse credibility determinations in asylum claims do not prejudice CAT claims on same facts; country condition reports by "unofficial" organizations are probative evidence for CAT withholding of removal; no requirement to show specific intent to inflict pain to qualify for CAT relief; grant of asylum is discretionary, but CAT relief is absolute and mandatory ].
Proponents of the absolute bar to refoulement claim that under CAT, the U.S. can detain these aliens indefinitely and/or prosecute them here under the "universal jurisdiction" provisions of the treaty that allow courts to assert extraterritorial jurisdiction over the torture offender as long as the offender is physically present within a territory of the United States when he is served (18 U.S.C. 2430A). Our understanding is that this new criminal cause has been asserted rarely if ever by the Department of Justice. And a recent Supreme Court case mentioned below suggests there are constitutional limits on the detention of removable or excludable aliens.
Nevertheless, the Convention - whether intended or not - has created an entirely new vehicle for aliens to try to delay deportation. Torture claims now operate as another "bite at the apple" after asylum and withholding remedies have been exhausted. As I say, the organic purpose of CAT was to "make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world." (Convention Against Torture, Preamble, 23 I.L.M. 1027). A noble goal in the abstract, but in the implementation, the U.S. appears to have tied its hands in, we expect, unintended ways. The U.S. appears now to be unable to remove people who just about everyone would like to see removed.
The INS parenthetically mentioned this massive loophole when the proposed regulations for CAT were published on February 19, 1999 (Federal Register):
"[T]here are some important differences between withholding of removal under section 241(b)(3) of the (Immigration and Nationality) Act and Article 3 of the Convention Against Torture. First, several categories of individuals, including persons who assisted in Nazi persecution or engaged in genocide, persons who have persecuted others, persons who have been convicted of particularly serious crimes, persons who are believed to have committed serious non-political crimes before arriving in the United States, and persons who pose a danger to the security of the United States, are ineligible for withholding of removal. See INA section 241(b)(3)(B). Article 3 of the Convention Against Torture does not exclude such persons from its scope." (Emphasis added.)
To reiterate, we seriously doubt that the Senate, when it ratified CAT, intended to create a whole new category of immigration relief for those ineligible for asylum or withholding of deportation. For that reason we strongly support legislative efforts to correct the overly broad and abusive interpretation of CAT protection.
The Magnitude Of The Problem
Mr. Chairman, when we testified on the need to correct the misuse of the CAT protection in 2000, we indicated that we were concerned that INS interpretation had created a loophole that would allow an increasing number of serious human rights abusers and criminals to remain in the United States. Currently available data bears out that assessment.
Recent data from the Executive Office of Immigration Review (EOIR) records 683 cases between 1998-02 in which CAT protection was asserted for aliens found deportable in cases involving criminal charges. All these cases were sent to the Board of Immigration Appeals (BIA). Although these cases cannot be tracked with precision, it appears that only about 150 of these individuals have been removed and only about 30 are still detained, implying that around 500 of these otherwise removable aliens may have been released back into U.S. society. It goes without saying that the fact that these individuals were found removable and their cases involved criminal activities or human rights abuse means that the likelihood of danger to the American public is increased by the release of these aliens. I would point out that this is occurring just after a period when the Executive Branch had made deportation of criminal aliens its "highest" public enforcement priority.
Another problem with the CAT protections is that the claim can be asserted after other claims for relief have failed. Because this protection may be sought following the full consideration of protections for an alien in removal proceedings, including eligibility for asylum, it offers a subsequent opportunity to overturn or delay removal. This is attractive as a delaying tactic. Further, the lack of specificity regarding the scope of CAT protection has invited appeals to the BIA seeking CAT relief in cases of spousal abuse, genital mutilation, child abuse, etc. The United States does not and should not condone any of these practices, and yet these claims are reminiscent of "social status group" claims persistently made under asylum law. As much as we disapprove of these practices - indeed in some cases they shock our conscience - they do not involve state practices of torture and should be defined within the BIA appeal system by legislative clarifying language to discourage such claims.
Let's look more closely at how "torture" is defined: The language of Article I of the Convention is clear. Torture is defined as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity [emphasis added]. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions." We are already seeing the definition of torture being expanded by the appellate courts while CAT claims are being considered as claims entirely separate from asylum claims from the same claimant.
The Senate, in consenting to the U.S. adoption of the Convention, expressed its understanding that, for an act to be performed with the "acquiescence" of a public official, the public official must "prior to the activity constituting torture, have awareness of such activity and thereafter breach his legal responsibility to intervene to prevent such activity." (136 Cong. Rec., supra note 4, at S17491-92.)
Demonstrating the type of cases that suggest the need for Congressional action are two in which the BIA granted CAT relief from removal to persons implicated in murders. In one, a Gambian national (Matter of Kebbem - BIA 2000), who had fled his country after murdering a man at a soccer game, was judged more likely than not to be tortured by government officials if he were returned to the Gambia on the basis of a State Department country report finding that the government had a reputation for physically abusing detainees held for political and security offenses. In another, an Uzbek national (Matter of Gaziev/Gazieva - BIA 2002) who was implicated in the 1994 Dendro Park shootout, a notorious public mass killings that left five dead in Uzbekistan, was also granted CAT protection. The BIA found that the lead respondent and his family would be more likely than not to be tortured to obtain confession regarding his involvement in the slayings. In the case of the Gambian, it appears from information provided by the Department of Homeland Security that he has since chosen to return voluntarily to Gambia, thereby belying his earlier assertion of fear of torture.
As is the case with many asylum claims, our concern persists over the methodology used for finding that an alien has a well-founded fear of persecution or torture: we have consistently called attention to the process's reliance on generic background information, like the State Department country reports and other documents often compiled by biased sources, rather than being based on objective documentary information or evidence.
There are limits to the utility of Country Condition reports. Experience with the return of Cubans to Cuba provides a reality check on such assessments. It was long alleged by advocates for admitting all Cubans who escaped the island that any Cubans returned to Cuba would be imprisoned and abused. Following the policy shift by the Clinton Administration in the mid-1990s to return Cubans intercepted at sea to Cuba, State Department officials and international organizations monitoring the status of returned Cubans established that the returned Cubans were not subjected to mistreatment. This demonstrates the gap between the rhetoric of possible persecution used to support a liberal admission policy and the practical reality revealed by experience. As in the case of asylum claims, it also exposes the very real risk of fraud.
Mr. Chairman, we believe Congress needs to intervene to further clarify the scope of remedies available under CAT. The Foreign Affairs Reform and Restructuring Act (FARRA) of 1998 implemented the so-called 'nonrefoulement' provisions of the Convention Against Torture (8 U.S.C.S. §1231 note). That legislation specifically called for the exclusion from CAT protection of criminal aliens and serious human rights abusers to the maximum extent consistent with the Senate's conditions on ratification of the Convention (FARRA §2242(c)). The Secretary of Homeland Security is authorized to terminate deferral of removal under CAT upon receipt of diplomatic assurances obtained by the Secretary of State that the alien would not be tortured if removed, or if an immigration judge finds changed circumstances (8 C.F.R. 208.18(c), 208.17(d)).
Despite such clear direction from Congress that CAT be applied sparingly, restrictively, and so as to induce compliance with humanitarian norms by foreign states, we have seen the administrative agencies and the Ninth Circuit move recklessly to interpret the Convention in the broadest sense, as an immigration program for highly undesirable aliens, with no indication that grave and fully documented abuses of human rights have been reduced or discouraged in any way.
Building an increasingly expanding exemption from removal for illegal aliens, especially aliens involved in criminal activities, on a system where there is little if any objective criteria to guide informed decisions, as has been done with the CAT screening criteria, is unfair both to the adjudications system and to the American public. Most incomprehensibly, it rewards human smugglers, torturers, and other serious abusers, by encouraging the very traffic it purportedly was intended to curb.
Correcting The Problem
The option of continuing to detain removable aliens until such time as removal can be effectuated has been eroded by the 2001 U.S. Supreme Court ruling in Zadvydas v. Davis (533 U.S. 678), holding that removable aliens may not be held indefinitely. The erosion in the Attorney General's authority to detain removable aliens has changed the entire framework for analyzing the impact of CAT on our immigration rules. If the U.S. loses the option of indefinitely detaining criminals and human rights abusers, this country must make a more vigorous effort to remove these people quickly. There are two avenues by which Congress could restore protection to American society from the threat from foreign criminals who otherwise are likely to be released under the CAT provisions.
1. The CAT responsibilities assumed by the United States were not self-executing, as the Senate stipulated in its advice and consent, Congress thus has the authority for specifying the criteria for the CAT's implementation. It would be our preferred option for Congress to specify that CAT protections are not absolute, and do not apply to serious criminals and human rights abusers. More generally, we would like to see claims brought under CAT reintegrated within the asylum and withholding of removal process and considered within the same legal claim. Further, any adverse credibility determinations made during the asylum process should also operate to bar a CAT claim. In conjunction with this approach, the Department of State should be encouraged to obtain commitments from the home country that a returned alien will not be subject to torture, or to attempt to find safe third countries willing to allow the alien(s) to enter. Where torture claims are based on claims of official acquiescence in torture, the standard of proof must be raised and the nexus between state action and private actors must be better defined. Finally, the U.S. should bar general immigration from any country that refuses to guarantee the safety and security of their nationals returned from the United States.
2. To prevent the alien from being released back into American society, the United States could assume responsibility for obtaining evidence from the home country about the crimes committed by the individual and effecting prosecution in the United States for those crimes. This, although possible under The Torture Victims Protection Act (18 U.S.C. 2340A), would involve an onerous assumption of new investigatory and prosecutorial responsibilities for the U.S. government. The downside of this approach is that the U.S. taxpayer will be absorbing tremendous costs associated with prosecuting people for crimes not committed in this country or affecting citizens or nationals of the United States.
The trend in expanding the definition of who is a member of a "particular social group" and in adding new categories of beneficiaries, as was done by Sec. 601 of IIRAIRA, has already put an unfair and unmanageable burden on the asylum/CAT adjudication process.
Mr. Chairman, our view of the problems that have arisen under administration of the CAT protections has not changed from what we already saw as a troubling trend in 2000. As we said at that time, "For those who have been barred from relief by the aggravated felony rules, the CAT provides one more "bite at the apple." While many of those claims may have merit, our concern is that over time, advocates will work to broaden the CAT definitions to create an ever-widening set of immigration loopholes. This is based on plenty of experience in the field. We are concerned 1) that many aggravated felons will be successful in remaining in the country in ways never intended or foreseen under asylum law, and 2) that the CAT will become the basis for expanding the definition of "torture" in new and novel ways that will include virtually all forms of regressive cultural and domestic practices where it can be alleged there is no modern state compliance with Western norms of civil protections." Since 1999 we have witnessed just such an undesirable and troubling development in the legal definition of "acquiescence" to torture.
The subsequent events, court rulings and the new data cited above indicate that our earlier assessment was correct. If Congress does not act, it is clear that the problem will expand further, that undesirable and dangerous aliens who illegally enter the United States will be harder to remove, that trafficking will become more violent, less risky, and more profitable, and that the American public will be placed at unnecessary risk.
Mr. Chairman, we encourage you and the members of this Subcommittee to initiate legislation that will limit the scope of CAT protection so that perpetrators of serious crimes and serious human rights abuse are brought to justice. At the same time, we urge that the scope of CAT protections be defined to clarify what is "state acquiescence": this term should be clarified to insure it does not include actions by private persons merely operating under a generalized condition of civil violence or organized criminal activity.
Mr. Chairman, this is an extremely difficult and challenging subject. We all want to be sensitive to the very real threats that exist for those who may be subject to some form of torture. As in all areas of public policy, this one requires a balancing of interests. FAIR works to assert the general interest of effective immigration controls, and I hope my testimony has adequately reflected that balance.
Thank you again for the opportunity to testify before the committee. I would be happy to answer any questions you or any other member of the subcommittee may have.