International Human Rights Treaties Can Make a Difference

Human Rights

International Human Rights Treaties Can Make a Difference
U.S. Implementation of Article 3 of the United Nations Convention Against Torture

By Kristen B. Rosati

Human rights advocates often are frustrated with the slow pace of the United States' recognition and implementation of international human rights treaties. Neither the Convention on the Rights of the Child nor the International Covenant on Economic, Social, and Cultural Rights, for example, has been ratified by the U.S. Other treaties, such as the United Nations Protocol Relating to the Status of Refugees, although ratified, have been partially superseded by inconsistent domestic immigration laws. One recent example of U.S. human rights treaty implementation, however, may restore faith-to a small extent-that international human rights treaties can make a difference in the U.S.
The United Nations Convention Against Torture
The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is a multilateral treaty containing provisions to prevent torture, to prosecute torturers, and to compensate victims of torture. Article 3 of the Convention prohibits the United States from expelling, returning, or extraditing "a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." Article 3 thus prevents the Immigration and Naturalization Service (INS) from removing someone who fears torture but who is otherwise ineligible for asylum and withholding of removal under U.S. immigration law.
In 1998, more than ten years after signing the Convention and almost five years after becoming a full party to the treaty, the U.S. finally incorporated Article 3 into domestic immigration law. On October 21, 1998, Congress passed and the president signed into law the Foreign Affairs Reform and Restructuring Act of 1998 (Pub. L. No. 105-277), section 2242 of which implemented Article 3 (the Implementing Legislation)
History of Article 3 in the U.S.
Implementation of Article 3 in the U.S. was desperately needed. Despite the horrifying persecution that many refugees face if returned to their home countries, U.S. immigration law has become increasingly restrictive in grant-ing relief to these individuals. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) (Pub. L. No. 104-208, 110 Stat. 3009), which amended the Immigration and Nationality Act (INA), erected a daunting set of barriers to relief for legitimate refugees. For instance, the IIRIRA created "expedited removal," which gives unprecedented power to frontline immigration officers to determine whether a person attempting to enter the U.S. without appropriate papers has a reasonable fear of returning to the home country. The IIRIRA enacted strict deadlines for filing asylum claims; people must claim asylum within one year of entering the U.S. In addition, IIRIRA increased the number of crimes that can result in draconian restrictions on eligibility for asylum and withholding of removal. Convictions for nonviolent crimes such as theft, illegal gambling, fraud, forgery, and tax evasion are classified as "aggravated felonies," which can result in the denial of asylum and withholding of removal, even for individuals who face severe persecution at home.
After IIRIRA removed asylum and withholding of removal as viable avenues of relief for many refugees, immigration advocates began looking to Article 3 of the Convention Against Torture to save individuals who feared the worst type of persecution-torture-if they returned to their home country. Article 3 is a powerful tool for immigration advocates because there are no exceptions to granting relief under the Convention. If a person can show that it is more likely than not that he or she would be subjected to torture upon return, the U.S. may not return such a person, even if the person has been convicted of an aggravated felony or other crime in the U.S.
At the urging of immigration advocates, the INS recognized its obligation under the Convention not to remove people who would be tortured, even before Congress passed the Implementing Legislation. In 1996, the General Counsel's Office of INS agreed to develop an informal administrative procedure to process claims under the Convention Against Torture. Under this informal procedure, INS General Counsel's Office entertained requests for stays of removal for people denied asylum or withholding of removal. If the individual could demonstrate that he or she might be eligible for relief under the Convention, the General Counsel's Office issued a stay of removal. These stays were good until formal regulations were issued under the Implementing Legislation.
However, if an individual was not granted a stay of removal by the INS under this informal procedure, the only hope was to demonstrate to a U.S. court that Article 3 was a "self-executing" treaty provision; that is, that Article 3 could be applied directly in U.S. courts. (See K. Rosati, "The United Nations Convention Against Torture: A Self-Executing Treaty That Prevents the Removal of Persons Ineligible for Asylum and Withholding of Removal," 26 DEN. J. INT'L L. & POL. 533 (1998) (arguing that Article 3 is a self-executing treaty provision).)
Unfortunately, the Board of Immigration Appeals (BIA) rejected that position in Matter of H-M-V- (Interim Decision 3365 (BIA 1998)), and held, without real analysis, that Article 3 was not self-executing. Before BIA's holding could be challenged in court, however, Congress passed the Implementing Legislation in October 1998, calling for the promulgation of regulations and mooting the self-execution issue.
Administrative Implementation of Article 3
The Implementing Legislation required the U.S. Department of Justice (DOJ) and the State Department to promulgate regulations within 120 days of the legislation's effective date. Pursuant to this statutory mandate, the DOJ issued interim regulations on February 19, 1999, to govern claims under the Convention. (See 63 Fed. Reg. 8479 (1999), amending inter alia, 8 C.F.R. зз 208.16 - 208.18; 64 Fed. Reg. 13,881 (1999) (corrections to interim rule).) The INS has not yet issued final regulations. The State Department issued final regulations on February 26, 1999. (See 64 Fed. Reg. 9435 (1999).)
Under DOJ regulations, INS and the immigration courts must grant a request for relief under the Convention if the claimant can "establish that it is more likely than not that he would be tortured if removed to the proposed country of removal." In order to prove that he or she is likely to experience "torture," the person must meet the following standards:
The anticipated act must inflict severe pain or suffering, either physical or mental. Physical torture may include beatings, burns, electrical shocks, exposure to excessive light or noise, suspension, suffocation, prolonged denial of sleep, food, hygiene or medical assistance, rape, and a variety of other physical mistreatments. (See Gina Germain, "Convention Against Torture: New Implementing Legislation, Regulations and Policies," AILA'S ASYLUM PRIMER, A PRACTICAL GUIDE TO UNITED STATES ASYLUM LAW AND PROCEDURE, 2d ed. (2000).) Mental pain and suffering constitutes torture if it is prolonged and results from the infliction or threatened infliction of severe physical pain or suffering, administration of a mind-altering substance, the threat of "imminent death," or the threat that another person will be subjected to that harm.
The act must be inflicted intentionally. An action that results in unanticipated or unintended severity of pain and suffering is not torture.
The act must occur "in the custody or physical control of the perpetrator."
The act must be 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."
Torture "does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions." Lawful sanctions include judicially imposed sanctions and other enforcement actions author-ized by law, including the death penalty, "but do not include sanctions that defeat the object and purpose of the Convention Against Torture to prohibit torture."

Continuing Problems with Implementation
Although U.S. implementation of Article 3 has saved many people from removal to torture, DOJ regulations do not completely fulfill Article 3's promise. In fact, as described below, a few aspects of the regulations-or immigration courts' interpretations of those regulations-threaten to undermine the effectiveness of Convention relief for some claimants.
Public Official Involvement. The torture must be 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." To "acquiesce" in torture, a public official need not have actual knowledge that an individual will be tortured. Under the Senate's resolution of advice and consent to ratification of the Convention Against Torture (136 CONG. REC. S17, 486-501 (daily ed. Oct. 27, 1990)), the official simply must "have awareness of such activity and thereafter breach his legal responsibility to intervene to prevent such activity."
The BIA recently held, however, that a person is not eligible for relief from torture by private groups or individuals that a government is unable or unwilling to control. (See Matter of S-V- (Interim Decision 3430 (BIA 2000).) This departs from the federal and immigration courts' treatment of asylum claims, in which a person who fears persecution by nongovernmental actors may obtain asylum if a government is unable or unwilling to protect them from that persecution. (See, e.g., Matter of Kasinga, Interim Decision 3278 at 12 (BIA 1996) (recognizing claim of persecution where the Togolese government was unwilling or unable to control the tribal practice of female genital mutilation).)
This departure is unwarranted: where a government knows that a private group is torturing people and is unable or unwilling to protect the victims, the government arguably has breached its legal responsibility to protect nationals from torture and has acquiesced in that torture. Especially if private groups operate with the explicit consent of the government or as a de facto government power, the members of that private group should be treated as public officials. What the BIA might do in such circumstances is unclear, although further extension of its Matter of S-V- decision would undermine Convention relief.
"Lawful Sanctions" Exclusion. Another substantial limitation on relief under the implementing regulations is the "lawful sanctions" exclusion. This regulatory language resulted from the Senate's resolution of advice and consent, in which it provided that lawful sanctions "include judicially imposed sanctions and other enforcement actions authorized by U.S. law or by judicial interpretation of such law."
The lawful sanctions exclusion thus should be read in conjunction with the Senate's resolution that U.S. law must authorize a sanction. Although U.S. law cannot literally authorize a punishment in another country, a punishment should not be exempt from the scope of the Convention unless U.S. law would authorize it if the conduct were to occur in this country. Because it may prove impossible to determine whether punishment is "legitimate" in the abstract, whether a punishment constitutes torture (including the death penalty) must be considered in the context of the laws and mores of the U.S.
The Creation of "Deferral" of Removal. The U.S. cannot return a person who can show that it is more likely than not that he or she would be subjected to torture in the home country. The Convention contains no exceptions to this mandatory grant of relief. Despite this absolute prohibition of exceptions, з 2242(c) of the Implementing Legislation nonetheless purports to exclude individuals ineligible for withholding of removal "to the maximum extent consistent with the obligations of the United States under the Convention."
Because Article 3 of the Convention does not allow any exceptions to relief, however, the implementing regulations compromised by creating two forms of relief: (1) withholding of removal, which is subject to the statutory exceptions, so that people convicted of certain crimes are not eligible and (2) "deferral" of removal, which is not subject to any statutory exception. A person granted withholding of removal under the Convention is granted greater rights in the U.S. and receives relief essentially identical to withholding of removal granted under INA з 241(b), which implements the U.N. Protocol Relating to the Status of Refugees.
An individual granted deferral of removal cannot be removed from the U.S., but deferral does not entitle the recipient to any "lawful status" in the U.S. Of even greater concern, a person granted deferral of removal could be subject to a streamlined termination process if INS believes torture no longer likely if the refugee returned. The INS can file a motion for a hearing before an immigration judge at any time to consider whether the person's deferral status should be terminated. The person is granted only ten days from the court's notice to provide additional evidence that he or she still is subject to torture upon return. Moreover, the burden of proof is on the individual at the hearing, and the immigration judge must make a de novo determination of whether the individual likely will be tortured upon return. Because INS lawyers may file such a motion at any time and are not limited in the number of such motions they may file, INS potentially could use the termination process to threaten or harass individuals who legitimately fear return.
Termination of Status under "Diplomatic Assurances." A person's request for protection may be terminated if the Department of State obtains "diplomatic assurances" from the country of removal that an individual will not be tortured. If the Department of State forwards such an "assurance" to the INS, the U.S. Attorney General must determine whether the assurance is "sufficiently reliable to allow the alien's removal to that country consistent with Article 3 of the Convention Against Torture." If the Attorney General so determines, the person's claim for Convention relief is terminated. To date, thankfully, only one person has been returned under diplomatic assurances-a man returned to Saudi Arabia to be tried for bombing the U.S. embassy. However, this process certainly poses a danger of subjecting Convention claims to the vagaries of international politics.
Conclusion
Human rights treaties can make a difference. Although some aspects of the interim DOJ regulations implementing Article 3 of the Convention Against Torture do not realize the full scope of Article 3 protection, Article 3 has saved the lives of thousands of people ineligible for asylum or withholding of removal under draconian U.S. immigration laws. We can hope that, with vigorous advocacy, the final implementing regulations will create an even tighter safety net.
Kristen B. Rosati is a partner at Coppersmith Gordon Schermer Owens, & Nelson, PLC, in Phoenix. Ms. Rosati litigated the first Convention Against Torture case considered for relief by INS.
U.S.-Mexico Border Program American Friends Service Committee
The U.S.-Mexico Border Program (USMBP) works to end human and civil rights abuses against immigrants on the U.S./Mexico border. The USMBP welcomes financial support, volunteers, and interns. For more information on USMBP contact: American Friends Service Committee (AFSC), U.S. Border Program, P.O. Box 126147, San Diego, CA 92112; phone: 619/233-4114; e-mail: AFSCILEMP@IGC.ORG.