SPEAKERS       CONTENTS       INSERTS    Tables

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67–347

2000
SERIOUS HUMAN RIGHTS ABUSERS ACCOUNTABILITY ACT OF 2000

HEARING

BEFORE THE

SUBCOMMITTEE ON
IMMIGRATION AND CLAIMS

OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

SECOND SESSION

ON
H.R. 5285

SEPTEMBER 28, 2000

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Serial No. 133

Printed for the use of the Committee on the Judiciary

For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402

COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
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MARY BONO, California
SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
DAVID VITTER, Louisiana

JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York

THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director

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Subcommittee on Immigration and Claims
LAMAR S. SMITH, Texas, Chairman
BILL McCOLLUM, Florida
ELTON GALLEGLY, California
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
JOE SCARBOROUGH, Florida

SHEILA JACKSON LEE, Texas
HOWARD L. BERMAN, California
ZOE LOFGREN, California
BARNEY FRANK, Massachusetts
MARTIN T. MEEHAN, Massachusetts

GEORGE FISHMAN, Chief Counsel
JIM WILON, Counsel
LORA RIES, Counsel
CINDY BLACKSTON, Professional Staff
LEON BUCK, Minority Counsel

C O N T E N T S

HEARING DATE
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    September 28, 2000

TEXT OF BILL

    H.R. 5285

OPENING STATEMENT

    Smith, Hon. Lamar S., a Representative in Congress From the State of Texas, and chairman, Subcommittee on Immigration and Claims

WITNESSES

    Augustin, Genevieve, former INS Trial Attorney

    Cooper, Bo, General Counsel, Immigration and Naturalization Service, United States Department of Justice

    Foley, Hon. Mark, a Representative in Congress From the State of Florida

    Massimino, Elisa C., director, Washington office, Lawyers Committee for Human Rights

    Rooney, Kevin, Director, Executive Office for Immigration Review, United States Department of Justice
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    Stein, Dan, executive director, the Federation for American Immigration Reform

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Augustin, Genevieve, former INS Trial Attorney: Prepared statement

    Cooper, Bo, General Counsel, Immigration and Naturalization Service, United States Department of Justice: Prepared statement

    Foley, Hon. Mark, a Representative in Congress From the State of Florida: Prepared statement

    Jackson Lee, Hon. Sheila, a Representative in Congress From the State of Texas: Prepared statement

    Massimino, Elisa C., director, Washington office, Lawyers Committee for Human Rights: Prepared statement

    Rooney, Kevin, Director, Executive Office for Immigration Review, United States Department of Justice: Prepared statement

    Smith, Hon. Lamar S., a Representative in Congress From the State of Texas, and chairman, Subcommittee on Immigration and Claims: Prepared statement
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    Stein, Dan, executive director, the Federation for American Immigration Reform: Prepared statement

SERIOUS HUMAN RIGHTS ABUSERS ACCOUNTABILITY ACT OF 2000

THURSDAY, SEPTEMBER 28, 2000

House of Representatives,
Subcommittee on Immigration and Claims,
Committee on the Judiciary,
Washington, DC.

    The subcommittee met, pursuant to notice, at 10:29 a.m., in Room 2226, Rayburn House Office Building, Hon. Lamar S. Smith (chairman of the committee) presiding.

    Present: Representatives Lamar S. Smith, Edward A. Pease, Charles Canady, Bob Goodlatte, Sheila Jackson Lee, and Barney Frank.

    Staff present: George Fishman, chief counsel; Jim Wilon, counsel; Lora Ries, counsel, Cindy Blackston, professional staff; Kelly Dixon, clerk; Leon Buck, minority counsel; and Nolan Rappaport, minority counsel.

OPENING STATEMENT OF CHAIRMAN SMITH
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    Mr. SMITH. The Subcommittee on Immigration and Claims will come to order. We will first have a hearing on H.R. 5285, the Serious Human Rights Abusers Accountability Act of 2000.

    [The bill, H.R. 5285, follows:]

106TH CONGRESS
    2D SESSION
  H. R. 5285
To amend the Immigration and Nationality Act to prevent human rights abusers from being eligible for admission into the United States and other forms of immigration relief, and for other purposes.
     
IN THE HOUSE OF REPRESENTATIVES
SEPTEMBER 25, 2000
Mr. SMITH of Texas (for himself and Mr. FOLEY) introduced the following bill; which was referred to the Committee on the Judiciary
     
A BILL
To amend the Immigration and Nationality Act to prevent human rights abusers from being eligible for admission into the United States and other forms of immigration relief, and for other purposes.
    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
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SECTION 1. SHORT TITLE.
    This Act may be cited as the ''Serious Human Rights Abusers Accountability Act of 2000''.
SEC. 2. SERIOUS HUMAN RIGHTS ABUSER DEFINED.
    (a) DEFINITION.—Section 101(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)) is amended by adding at the end the following:
    ''(50)(A) The term 'serious human rights abuser' means any alien who—
    ''(i) ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion;
    ''(ii) while serving as a foreign government official, was responsible for, or directly carried out, particularly severe violations of religious freedom (as defined in section 3 of the International Religious Freedom Act of 1998 (22 U.S.C. 6402));
    ''(iii) during an armed conflict, ordered, incited, assisted, or otherwise participated in a war crime (as defined in section 2441(c) of title 18, United States Code);
    ''(iv) ordered, incited, assisted, otherwise participated in, attempted to commit, or conspired to commit conduct that would constitute genocide (as defined in section 1091(a) of title 18, United States Code), if the conduct were committed in the United States or by a United States national;
    ''(v) ordered, incited, assisted, or otherwise participated in any act of torture (as defined in the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, done at New York on December 10, 1984, subject to any reservations, understandings, declarations, and provisos contained in the United States Senate resolution of ratification of the Convention); or
    ''(vi) ordered, incited, assisted, or otherwise participated in a crime against humanity (including the commission of murder, extermination, enslavement, deportation, imprisonment, torture, rape, sexual slavery, forced prostitution, forced pregnancy, forced abortion, forced sterilization, or acts of a similar character), when committed as part of a widespread or systematic attack, whether international or internal in character, and directed against any civilian population, with actual or constructive knowledge of the attack.
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    ''(B) Subparagraph (A) shall not apply to an alien who demonstrates that—
    ''(i) the conduct was committed under extreme duress; and
    ''(ii) the harm reasonably feared by the alien substantially exceeded the harm attributable to the alien's conduct.
SEC. 3. SERIOUS HUMAN RIGHTS ABUSERS INADMISSIBLE AND DEPORTABLE.
    (a) INADMISSIBILITY OF SERIOUS HUMAN RIGHTS ABUSERS.—
    (1) IN GENERAL.—Section 212(a)(2)(G) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(2)(G)) is amended to read as follows:
    ''(G) SERIOUS HUMAN RIGHTS ABUSERS.—Any serious human rights abuser is inadmissible.''.
    (2) CONFORMING AMENDMENT.—Section 212(a)(3)(E) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(E)) is amended to read as follows:
    ''(E) PARTICIPANTS IN NAZI PERSECUTIONS.—Any alien who, during the period beginning on March 23, 1933, and ending on May 8, 1945, under the direction of, or in association with—
    ''(i) the Nazi government of Germany,
    ''(ii) any government in any area occupied by the military forces of the Nazi government of Germany,
    ''(iii) any government established with the assistance or cooperation of the Nazi government of Germany, or
    ''(iv) any government which was an ally of the Nazi government of Germany,
ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion is inadmissible.''.
    (b) DEPORTABLE ALIENS TO INCLUDE SERIOUS HUMAN RIGHTS ABUSERS.—
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    (1) IN GENERAL.—Section 237(a) of the Immigration and Nationality Act (8 U.S.C. 1227(a)) is amended by adding at the end the following:
    ''(7) SERIOUS HUMAN RIGHTS ABUSERS.— Any serious human rights abuser is deportable.''.
    (2) CONFORMING AMENDMENT.—Section 237(a)(4)(D) of the Immigration and Nationality Act (8 U.S.C. 1227(a)(4)(D)) is amended to read as follows:

    ''(D) ASSISTED IN NAZI PERSECUTION.—Any alien described in section 212(a)(3)(E) is deportable.''.
SEC. 4. BARS TO REFUGEE STATUS AND ASYLUM FOR SERIOUS HUMAN RIGHTS ABUSERS.
    (a) REFUGEE DEFINED.—Section 101(a)(42) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(42)) is amended by striking the second sentence and inserting the following:
''The term 'refugee' does not include any person who is a serious human rights abuser.''.
    (b) NO WAIVER OF GROUND OF INADMISSIBILITY FOR REFUGE SEEKERS.—Section 207(c)(3) of the Immigration and Nationality Act (8 U.S.C. 1157(c)(3)) is amended by inserting ''or (2)(G)'' after ''(2)(C)''.
    (c) EXCEPTIONS TO GRANTING ASYLUM.—Section 208(b)(2)(A)(i) of the Immigration and Nationality Act (8 U.S.C. 1158(b)(2)(A)(i)) is amended to read as follows:
    ''(i) the alien is a serious human rights abuser;''.
    (d) EXTENSION TO SPOUSES AND CHILDREN OF EXCEPTIONS TO GRANTING ASYLUM.—Section 208(b)(3) of the Immigration and Nationality Act (8 U.S.C. 1158(b)(3)) is amended by striking ''such alien.'' and inserting ''such alien, unless the Attorney General determines that one of the exceptions in clauses (i) through (v) of paragraph (2)(A) applies to the spouse or child.''.
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SEC. 5. BAR TO ADJUSTMENT OF STATUS OF REFUGEES FOR SERIOUS HUMAN RIGHTS ABUSERS.
    Section 209(c) of the Immigration and Nationality Act (8 U.S.C. 1159(c)) is amended by inserting ''or (2)(G)'' after ''(2)(C)''.
SEC. 6. EXCEPTION TO RESTRICTION ON REMOVAL FOR SERIOUS HUMAN RIGHTS ABUSERS AND TERRORISTS.
    Section 241(b)(3)(B) of the Immigration and Nationality Act (8 U.S.C. 1231(b)(3)(B)) is amended—
    (1) in the matter preceding clause (i), by striking ''section 237(a)(4)(D)'' and inserting ''subparagraph (B) or (D) of section 237(a)(4)''; and
    (2) by amending clause (i) to read as follows:
    ''(i) the alien is a serious human rights abuser;''.
SEC. 7. BAR TO FINDING OF GOOD MORAL CHARACTER FOR SERIOUS HUMAN RIGHTS ABUSERS.
    Section 101(f) of the Immigration and Nationality Act (8 U.S.C. 1101(f)) is amended by inserting after paragraph (1) the following:
    ''(2) a serious human rights abuser;''.
SEC. 8. BAR TO CANCELLATION OF REMOVAL FOR SERIOUS HUMAN RIGHTS ABUSERS.
    Section 240A(c)(4) of the Immigration and Nationality Act (8 U.S.C. 2339b(c)(4)) is amended—
    (1) by striking ''section 212(a)(3)'' and inserting ''paragraph (2)(G) or (3) of section 212(a)''; and
    (2) by striking ''section 237(a)(4).'' and inserting ''paragraph (4) or (7) of section 237(a).''.
SEC. 9. BAR TO ADJUSTMENT OF STATUS WITH RESPECT TO CERTAIN SPECIAL IMMIGRANTS.
    Section 245(h)(2)(B) of the Immigration and Nationality Act (8 U.S.C. 1255(h)(2)(B)) is amended by inserting ''(2)(G),'' before ''(3)(A)''.
SEC. 10. CRIMINAL PENALTIES FOR REENTRY FOR REMOVED SERIOUS HUMAN RIGHTS ABUSERS.
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    Section 276(b) of the Immigration and Nationality Act (8 U.S.C. 1326(b)) is amended—
    (1) in paragraph (3), by striking ''sentence. or'' and inserting ''sentence;'';
    (2) in paragraph (4), by striking the period at the end and inserting ''; or''; and
    (3) by inserting after paragraph (4) the following:
    ''(5) who was removed from the United States pursuant to section 212(a)(2)(G) or 237(a)(7), and who thereafter, without the permission of the Attorney General, enters, attempts to enter, or is at any time found in, the United States shall be fined under title 18, United States Code, imprisoned not more than 10 years, or both.''.
SEC. 11. AIDING OR ASSISTING SERIOUS HUMAN RIGHTS ABUSERS TO ENTER THE UNITED STATES.
    Section 277 of the Immigration and Nationality Act (8 U.S.C. 1327) is amended by striking ''felony)'' and inserting ''felony or is a serious human rights abuser)''.
SEC. 12. REVISION OF REGULATIONS WITH RESPECT TO THE INVOLUNTARY RETURN OF PERSONS IN DANGER OF SUBJECTION TO TORTURE.
    (a) REGULATIONS.—Not later than 120 days after the date of the enactment of this Act, the Attorney General shall revise the regulations prescribed by the Attorney General to implement the Convention. Such revision shall render ineligible for withholding or deferral of removal under the Convention aliens to whom the relief described in subparagraph (A) of section 241(b)(3) of the Immigration and Nationality Act (8 U.S.C. 1231(b)(3)) does not apply by reason of subparagraph (B) of such section (as amended by section 6 of this Act). Such revision shall also ensure that the burden of proof is on the applicant for withholding or deferral of removal under the Convention to establish by clear and convincing evidence that he or she would be tortured if removed to the proposed country of removal.
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    (b) JUDICIAL REVIEW.—Notwithstanding any other provision of law, no court shall have jurisdiction to review the regulations adopted to implement this section, and nothing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under the Convention or this section, except as part of the review of a final order of removal pursuant to section 242 of the Immigration and Nationality Act (8 U.S.C. 1252).
    (c) AUTHORITY TO DETAIN.—Nothing in this section shall be construed as limiting the authority of the Attorney General to detain any person under any provision of law, including, but not limited to, any provision of the Immigration and Nationality Act.
    (d) CONVENTION DEFINED.—In this section, the term ''Convention'' means the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, done at New York on December 10, 1984.

    Mr. SMITH. We welcome as our first witness today the Honorable Mark Foley, U.S. House of Representatives, member from Florida, and we welcome him for a couple of reasons. One, he introduced the first bill on the subject and he and I have collaborated with the bill that we are considering today and that he will testify on, so we especially appreciate his leadership in this area, his expertise, and we welcome his comments.

    Representative Foley, if you will begin.

STATEMENT OF HON. MARK FOLEY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA

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    Mr. FOLEY. Thank you very much, Mr. Chairman and Mr. Pease. I would like to thank you and the members of your subcommittee for inviting me back to testify about the serious matter of foreign thugs and torturers living here in the United States.

    On February 17, I testified before your subcommittee regarding my bill, H.r. 3058, the Anti-Atrocity Alien Deportation Act. My bill sends a simple message. If we find that you have committed or performed acts of torture, you will not be allowed into the United States, and if you have somehow managed to slip into the U.S., your citizenship will be forfeited and you will be forced to leave the country. It is very clear. Engage in acts of torture and you are not welcome here.

    That is why I am pleased that the thrust of my legislation is being incorporated into the chairman's expanded H.R. 5285, the Serious Human Rights Abusers Accountability Act of 2000.

    The United States has always been a safe haven for those fleeing political persecution abroad, and this policy should continue. However, brutal criminals who have gone on violent rampages in Haiti, Yugoslavia, and Rwanda have been able to gain entry to the United States through the same doors that we have opened to deserving refugees. We need to slam the door shut on these thugs and rid our country of those who have already managed to make their way here.

    I did not become aware of the need for this until I learned last year that Carl Dorelien, a key member of the brutal military dictatorship that ruled Haiti from 1991 to 1994, is now living in comfort in Port Saint Lucie, Florida, a beautiful coastal town in my Congressional district. He even won the Florida lottery, and amazingly has described his current standard of living as a step down from his former life in Haiti. This is a man who was head of personnel for the Haitian army, oversaw the brutal campaign that led to the deaths of approximately 5,000 Haitians between 1991 and 1994.
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    Initially, I assumed this case was just an isolated and bizarre episode, but once I began to look into the issue more, I soon realized that we had a big problem on our hands. The United States is becoming a haven for brutal human rights abusers. According to the Center for Justice and Accountability in San Francisco, at least 60 alleged human rights violators are currently living in the United States and these are just the ones who have been identified.

    In 1998, Canada began an aggressive campaign to locate and act against human rights abusers who found their way into their country. As of July 1999, the Canadian government indicated that 400 cases are being processed toward removal, 307 suspected war criminals have been denied visas, and 23 were deported. That is a total of 700 war criminals that Canada has detected.

    Based on Canada's figures and taking into account the much bigger population in the United States and other socio-economic factors, I think the Center for Justice and Accountability's claim that we could have as many as 7,000 human rights abusers living in this country is a reasonable estimate.

    We must locate and take action against these criminals. After all, statutes like Megan's Law allow communities to find out if known sex offenders move into the area. These same communities, however, could be oblivious to the fact that a brutal thug who went on a rampage in places like Haiti or Kosovo is living anonymously among them.

    Mr. Chairman, I support your legislation. I thank you for the dialogue. I appreciate the members of the subcommittee working so diligently on this act and I look forward to its speedy passage.
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    Mr. SMITH. Thank you, Mr. Foley.

    I just want to make a couple of comments. I do not know that I have any questions, but thank you again for calling our attention to these abusers who live so well in the United States when, in fact, they should not be here at all. Your example of the individual from Haiti who oversaw the 5,000 deaths is a good example of the kind of individual who we do not want living among us and who should be asked to leave the country.

    Also, your statistic about the 7,000 human rights abusers living in the country based upon the Center for Justice and Accountability's projection should be, well, I will not say a terrifying figure, but maybe that is not an exaggeration. Certainly it should be a horrifying figure for any American citizen who is concerned about their well-being and their personal safety. So I would hope that we will mark up this bill today and I thank you again for leading the way and pointing us in the right direction.

    Without objection, my opening statement is going to be made a part of the record.

    [The prepared statement of Mr. Smith follows:]

PREPARED STATEMENT OF HON. LAMAR S. SMITH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS, AND CHAIRMAN, SUBCOMMITTEE ON IMMIGRATION AND CLAIMS

    Recent media stories have reported that aliens who participated in political killings, torture, or other human rights violations in their home countries have been able to take refuge in the United States. Former government and military officials from repressive regimes in countries such as Haiti, El Salvador, and the former Yugoslavia have been able to escape justice and live in American communities, sometimes in close proximity to other immigrants who were victims of their repression.
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    This Subcommittee held a hearing on February 17 of this year on H.R. 3058, the ''Anti-Atrocity Alien Deportation Act.'' It amended the Immigration and Nationality Act to make aliens who have committed acts of torture inadmissible and removable. I think we should go farther so I have introduced a new bill, along with Representative Mark Foley: the ''Serious Human Rights Abusers Accountability Act.''

    H.R. 5285 defines ''serious human rights abuser'' to include aliens who were persecutors, violators of religious freedom, war criminals, those involved in committing genocide, torturers, and those who commit crimes against humanity.

    H.R. 5285 amends the Immigration and Nationality Act to make ''serious human rights abusers' inadmissible and removable. It also provides criminal penalties for serious human rights abusers who reenter the United States illegally and for other persons who assist serious human rights abusers in entering the United States.

    H.R. 5285 also bars serious human rights abusers from receiving immigration benefits or relief, such as refugee status, asylum, adjustment of status, naturalization, cancellation of removal, or withholding of removal.

    This bill also addresses dangerous defects in the Torture Convention, which provides that aliens who may be tortured if returned to their home country cannot be deported.

    The difference between asylum and torture relief is that to be granted asylum, an alien must show he or she would be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion. With torture relief, the ''on account of'' nexus is not required. The torture applicant has only to show they would be tortured for any reason.
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    In conversations with INS staff and others who are involved in trying and adjudicating torture claims, we have been told that claims of torture are proliferating unchecked. Torture is being watered down to the level of harm. And because an applicant need not show the ''on account of'' nexus, some aliens are being granted torture relief when they cannot even meet the asylum standard, but only have to show that it is more likely than not that they will be harmed (not true torture) for any reason.

    Also, criminals and human rights violators, who are ineligible for all other forms of immigration relief, can and do apply for torture relief. To the maximum extent consistent with our obligations under the Torture Convention, the Congress instructed that the regulations exclude from torture protection aliens who are particularly serious criminals, aliens who committed a ''serious nonpolitical crime'' outside the US, and those who are a danger to U.S. security.

    Despite this 1998 congressional instruction, the Justice Department has decided not to deport major criminals and serious human rights abusers who claim they will be tortured. In fact, some aliens claim they should not be deported because they will likely be mistreated in retaliation for becoming a criminal in the United States or for a previous act of torture they themselves committed! The number of cases where torture relief was the only form of relief sought by criminal aliens, presumably because the applicant was ineligible for all other forms of relief, more than quadrupled from 1999 to 2000.

    Neither the Convention nor the ratification legislation obligate us to adjudicate torture claims in immigration court and the Board of Immigration Appeals. Prior to the regulations, the INS used to administratively examine torture claims as a last step before removal. Claims were not subject to review. We should return to this practice.
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    Also, Congress should re-examine the Torture Convention in light of abuses that have arisen since 1999. Serious criminals and human rights abusers should be barred from relief from deportation under the Convention. This bill does so by excluding such aliens from deferral of removal under the Convention. The bill also requires that torture applicants show clear and convincing evidence that they will be tortured if returned home. Simple justice and the safety of the American people deserve no less.

    Some advocates of the torture regulations argue that we would be contradicting the Torture Convention if deferral of removal did not exist. But, it is well established by the Supreme Court that Congress can enact legislation that is more restrictive than an international treaty. Second, I believe the regulations implemented by the Justice Department do not adequately conform to our implementing legislation.

    The purpose of the Torture Convention is to prevent torture in each of our own countries and to prosecute torturers. Such people should not be permitted to apply for immigration relief. Rather, they should be detained and prosecuted under our federal laws. Unfortunately, this is not happening.

    The Torture Convention regulations also have a provision that states an alien can return to a country if the Secretary of State gives the Attorney General diplomatic assurances that the alien will not be tortured there. This tool is not being used either.

    An alien can also be sent to a third country where torture would not occur. But the Justice and State Departments are not adequately pursuing this procedure either.
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    I look forward to hearing from our witnesses on these issues.

    Mr. SMITH. I do want to recognize the gentleman from Indiana, Mr. Pease, for his opening statement or for any questions he may have, and I also want to say I appreciate, as always, his presence at these hearings.

    Mr. PEASE. Thank you, Mr. Chairman. I have nothing further to add on the substance of the legislation. We did that at the hearing earlier this year at the request of Mr. Foley and the legislation that he introduced.

    I just want to add my expression to the chairman's of my gratitude for the work you have done on this, Congressman, I suspect not without some personal risk to yourself, knowing the people that are involved in this legislation. I am very grateful for your willingness to do so, your courage in doing so, and your tenacity in staying with it.

    Mr. FOLEY. Thank you. And again, just to reiterate, I guess the bigger fear for people, particularly those Haitians who have gone to sea and come to the United States, seeking to leave a brutal dictatorship, to be confronted by seeing the same person who tortured them there now living in a guard-gated community, driving expensive vehicles, and having won $3 million in the lottery is simply appalling. It is not what we stand for as a country. And when they say on the Statue of Liberty, send us your tired, your poor, your huddled masses, we did not expect to send those that made those huddle or forced people to huddle and forced people to leave their country.

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    Again, I appreciate the seriousness with which the subcommittee has taken this and I hope that, as I said earlier, we can see its speedy passage.

    Mr. SMITH. Thank you again, Mr. Foley.

    Mr. FOLEY. Thank you, Mr. Chairman, very much.

    Mr. SMITH. I appreciate your testifying.

    [The prepared statement of Mr. Foley follows:]

PREPARED STATEMENT OF HON. MARK FOLEY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA

    Mr. Chairman, I would like to thank you and the members of your Subcommittee for inviting me back to testify about the serious matter of foreign thugs and torturers living here in the United States.

    On February 17th, I testified before your Subcommittee regarding my bill, H.R. 3058, the Anti-Atrocity Alien Deportation Act. My bill sends a simple message—if we find that you have committed or ordered performed acts of torture, you won't be allowed into the United States. And . . . if you have somehow managed to slip into the U.S., your citizenship will be forfeited and you will leave this country. It's very clear—engage in acts of torture and you're not welcome here.

    That is why I am pleased that the thrust of my legislation is being incorporated into the Chairman's expanded bill, H.R. 5285, the Serious Human Rights Abusers Accountability Act of 2000.
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    The United States has always been a safe-haven for those fleeing political persecution abroad and this policy should continue. However, brutal criminals who have gone on violent rampages in Haiti, Yugoslavia and Rwanda have been able to gain entry to the United States through the same doors that we have opened to deserving refugees. We need to slam the door shut on these thugs and rid our country of those who have already managed to make their way here.

    I didn't become aware of the need for this until I learned last year that Carl Dorelien—a key member of the brutal military dictatorship that ruled Haiti from 1991–1994—is now living in comfort in Port Saint Lucie, Florida, a beautiful coastal town my Congressional district. He even won the Florida lottery and—amazingly—has described his current standard of living as ''a step down'' from his former life in Haiti. This is a man who—as Head of Personnel for the Haitian army—oversaw the brutal campaign that led to the deaths of approximately 5,000 Haitians between 1991 and 1994.

    Initially, I assumed this case was just an isolated and bizarre episode. But, once I began to look into the issue more, I soon realized that we have a big problem on our hands. The United States is becoming a haven for brutal human rights abusers.

    According to the Center for Justice and Accountability in San Francisco, at least 60

    alleged human rights violators are currently living in the United States. And these are just the ones who have been identified.

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    In 1998, Canada began an aggressive campaign to locate and act against human rights abusers who found their way into the country. As of July, 1999, the Canadian government indicated that 400 cases are being processed toward removal, 307 suspected war criminals have been denied visas, and 23 were deported. That's a total of 700 war criminals that Canada has detected.

    Based on Canada's figures—and taking into account the much bigger population in the United States and other socio-economic factors—I think the Center for Justice and Accountability's claim that we could have as many as 7,000 human rights abusers living in this country is a reasonable estimate.

    We must locate and take action against these criminals. After all, statutes like Megan's Law allow communities to find out if known sex-offenders move into the area. These same communities, however, could be oblivious to the fact that a brutal thug—who went on a rampage in a place like Haiti or Kosovo—is living anonymously among them.

    Mr. Chairman, I support this legislation and thank you and the other members of the Subcommittee for allowing me to appear before you today.

    Mr. SMITH. We will now go to our second panel, and let me introduce them as they come forward, Mr. Kevin Rooney, Director, Executive Office for Immigration Review, U.S. Department of Justice, accompanied by the Honorable Michael Creppy, Chief Immigration Judge, Executive Office for Immigration Review, U.S. Department of Justice, and also Mr. Bo Cooper, General Counsel, Immigration and Naturalization Service, U.S. Department of Justice.

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    Thank you all for being here and we will begin with Mr. Rooney.

STATEMENT OF KEVIN ROONEY, DIRECTOR, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, UNITED STATES DEPARTMENT OF JUSTICE

    Mr. ROONEY. Thank you, Mr. Chairman and Mr. Pease. As the Director of the Executive Office for Immigration Review, I am pleased to have the opportunity to testify before this subcommittee about the United Nations Convention Against Torture implementation. Accompanying me today, as the chairman indicated, is the Chief Immigration Judge, Michael J. Creppy, who oversees the immigration courts throughout the United States.

    On February 19 of 1999, the Department of Justice promulgated interim regulations implementing the obligations of the United States under article 3 of the Convention Against Torture. These became effective on March 22, 1999. Under these regulations, an alien in removal, deportation, or exclusion proceedings before an immigration judge may request protection under the Convention Against Torture. Generally, if an immigration judge determines that an applicant has met the criteria and is therefore eligible for protection under the Convention Against Torture, the alien may be granted either a withholding of removal or a deferral of removal. The latter, the deferral of removal, is a more limited form of protection reserved for criminal aliens otherwise barred from receiving asylum, statutory withholding of removal, or even the withholding of removal under the Convention Against Torture.

    In response to this committee's request, Mr. Chairman, we submitted detailed statistics which addressed all of the requests that you had concerning our case load for fiscal years 1999 and 2000. With your permission, Mr. Chairman, the statistics are attached to my written testimony and I ask that they be made a part of the record along with the formal written testimony today.
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    This morning, however, I will summarize the data that we have provided you and try to address the specific areas of concern that we understand you wish to focus on today.

    Our data represent 16 months, since March 1999 through the end of July of this year, of adjudications under the regulatory system. First of all, the Convention Against Torture regulations allowed applicants with already existing final orders of removal, deportation, or exclusion, to file a motion to reopen for the sole purpose of asserting a claim under the Convention Against Torture. Those motions were required to be filed within the first 90 days, before June 21 of 1999.

    Our chart shows in simplified terms that there were 137 of these motions to reopen that were granted to be reopened by the immigration judges and the Board of Immigration Appeals, and then of those, 26 resulted in grants of either the withholding of removal or the deferral of removal. So it is a relatively small number that actually were reopened and then received grants.

    Our other charts show that there have been approximately 12,000 Torture Convention claims over the past 16 months. The number is 11,438 on the charts for the two fiscal years. Now, of those 12,000, there were approximately 600 cases, about 5 percent, where the torture protection was granted. One-half of the grants, 286, about 300 out of the 600 grants, were in the form of a deferral of removal, which is the more limited form of torture protection reserved for criminal aliens.

    Our other charts show that of these 12,000 claims, 2,500, approximately, involved criminally charged aliens. Out of those 2,500, there were about 308 grants. So once again, in perspective, of 12,000 claims, 600 grants, 2,500 criminals, and they received about half of the grants, 300.
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    Overall, our charts also show, as the chairman requested that we present the number of cases where a torture claim was the only form of relief sought rather than among other reliefs. There were only 768 of these cases where only the torture claim was made, and 363 of these involved criminally charged aliens. This was rather surprising to us in looking at the data. Fifty-five grants were made for those who were criminally charged.

    The Department's goal overall in developing the regulations was to ensure appropriate protection under the Convention but with no undue disruption to the issuance and execution of removal orders. From our perspective, this has been successful. From a resource management and administrative efficiency perspective, there has really been no noticeable impact on the courts because the CAT claims are heard in a unified hearing process with no additional hearing required. So of those 12,000 claims, except for the 700-and-some-odd that included only a claim for torture relief, these hearings would have occurred anyway.

    The 768 cases where there is a request for only the torture protection has really had a token resource effect. This averages out to about less than 50 cases a month, which is less than one-half the monthly workload of just one of our 220 judges.

    Mr. Chairman, I hope this summary assists you and the members of the subcommittee in seeing what the effect of the Torture Convention has been on the court's workload. As for the policy issues involved, of course, we will defer to the INS to present the Department's perspective. But Judge Creppy and I will be certainly happy to answer any questions that you or the members may have.

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    Mr. SMITH. Thank you, Mr. Rooney.

    [The prepared statement of Mr. Rooney follows:]

PREPARED STATEMENT OF KEVIN ROONEY, DIRECTOR, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, UNITED STATES DEPARTMENT OF JUSTICE

    Mr. Chairman and Members of the Subcommittee, as Director of the Executive Office for Immigration Review (EOIR), I am pleased to have the opportunity to testify before this Subcommittee about the United Nations Convention Against Torture (''CAT''). Accompanying me today is Chief Immigration Judge Michael J. Creppy who oversees the Immigration Courts throughout the United States.

    On February 19, 1999, the United States Department of Justice promulgated interim regulations implementing the obligations of the United States under Article 3 of the Convention Against Torture, which became effective on March 22, 1999. Under these regulations, an alien in removal, deportation, or exclusion proceedings before an Immigration Judge may request protection under the Convention Against Torture. Generally, if an Immigration Judge determines that an applicant has met the criteria and is therefore eligible for protection under the Convention Against Torture, the alien may be granted either withholding of removal or deferral of removal. Deferral of removal is a more limited form of protection.

    In response to this Committee's request, EOIR has submitted statistics concerning its caseload, including the Convention Against Torture cases both in the Immigration Courts and the Board of Immigration Appeals ('the Board'') for fiscal years 1999 and 2000. The statistics are attached to my testimony and I ask that they be made part of the record here today.
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    First, let me say that our Convention statistics usually cover about sixteen months—from March 22, 1999 through July 31, 2000. Therefore neither fiscal years 1999 or 2000 are complete 12-month periods. By the end of this calendar year we should have statistics for the entire fiscal year 2000.

    Page one of our submission responds to your first request by providing the total number of motions to reopen filed with the Immigration Judges and the Board of Immigration Appeals for fiscal year 1999 and fiscal year 2000. While EOIR is unable to identify the entire universe of motions to reopen based upon CAT claims,(see footnote 1) we are able to determine how many motions to reopen to apply for CAT protection were granted, as well as the disposition by the Immigration Judge of those applications. For example, in fiscal year 1999, 10,929 motions to reopen were filed with the Immigration Judges, of which 41 were granted in cases in which the alien applied for CAT protection.

    Page 2 of the statistics shows the total number of decisions rendered by Immigration Judges on all applications for relief, including torture protection, filed by aliens in removal, deportation, and exclusion proceedings. These numbers are further broken down to show the number of decisions that were appealed to the Board. For example, in fiscal year 1999, Immigration Judges adjudicated 83,847 applications for relief, and 17,694 of these decisions, or 21 percent, were appealed to the Board.

    The chart on page 2 also reflects the number of decisions made by Immigration Judges for applicants who requested protection under the Convention Against Torture in addition to applying for other forms of relief. In fiscal year 1999, Immigration Judges adjudicated 2,000 CAT applications in cases in which the applicants also requested other forms of relief, while in fiscal year 2000, there were 9,438 CAT Immigration Judge adjudications.
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    Also included is a breakdown of the number of decisions that were appealed to the Board of Immigration Appeals. In fiscal year 1999, there were 1,166 appeals—50 percent of the cases. In fiscal year 2000, there were 3,984 appeals—40 percent of the cases. In attachments 1 and 2, we have included a breakdown of the nationalities of those aliens who applied for protection under the Convention Against Torture, in addition to other forms of relief.

    Page 3 of our statistics shows that from March 22, 1999, through September 14, 2000,(see footnote 2) a total of 19,949 CAT applications have been filed with the Immigration Courts. As of September 14, 2000, the Immigration Judges completed 13,085 or 66 percent of these applications and 6,864 cases remain pending.

    Page 4 of our statistics reflects the disposition of the decisions rendered by Immigration Judges on applications for CAT protection for fiscal years 1999 and 2000 in the cases in which other forms of relief were requested. The analysis focuses on the number of cases in which withholding of removal and deferral of removal were granted and the appeal ratios. For example, in fiscal year 1999, there were 79 decisions, or 4 percent of the total number of decisions, by Immigration Judges granting aliens protection under the Convention Against Torture in the form of withholding of removal. Fifty-two percent of these decisions were appealed by the Immigration and Naturalization Service to the Board of Immigration Appeals. Comparatively, in fiscal year 1999, 90, or 4.5 percent of the total number of decisions, were granted deferral of removal protection. Thirty-seven of these decisions, or 41 percent, were appealed by the Immigration and Naturalization Service to the Board of Immigration Appeals.

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    Furthermore, page 4 shows the number of decisions in which applications for CAT protection were denied and the number of those decisions that were appealed to the Board. In fiscal year 1999, of the 1,458 decisions denying CAT protection, 70 percent were appealed by the applicant to the Board. In fiscal year 2000, the number of decisions denying CAT protection increased to 6,652, of which 55 percent were appealed by the applicant to the Board. Comparatively, in fiscal year 1999 there were 169 decisions (8 percent of the total applications) granting protection under CAT, while in fiscal year 2000, there were 412 decisions (4 percent of the total applications).

    To compare the number of decisions appealed where applicants are filing for CAT protection among other forms of relief with those where applicants are filing only for CAT protection, compare the charts on pages 4 and 5. For example, where applicants are filing for CAT protection among other forms of relief, 70 percent of the decisions in fiscal year 1999 and 31 percent of the decisions in fiscal year 2000 were appealed. Of those decisions denying protection, 70 percent were appealed to the Board in fiscal year 1999 and 54 percent in fiscal year 2000. By contrast, of the decisions where only CAT protection has been requested and is granted, 41 percent of the cases in fiscal year 1999 and 41 percent in fiscal year 2000 were appealed to the Board. Of the CAT-only decisions where protection was denied, 63 percent of the cases in fiscal year 1999, and 44 percent in fiscal year 2000 were appealed to the Board.

    The number of decisions rendered by Immigration Judges in cases in which an alien in removal, deportation, or exclusion proceedings has been criminally charged(see footnote 3) and has applied for CAT protection, as well as other forms of relief, are displayed on page 6. These cases involve aliens who have been charged by INS as having committed aggravated felonies and other removable offenses prescribed by the Immigration and Nationality Act. In fiscal year 1999, the Immigration Judges adjudicated 613 CAT applications filed by criminally charged aliens, of which 445 (73 percent) were denied protection and 103 (17%) were granted protection. In fiscal year 2000, the Immigration Judges adjudicated 1,939 CAT applications for criminally charged aliens, of which 1344 (69 percent) were denied protection and 205 (11 percent) were granted protection. In order to provide the Subcommittee a more detailed picture of the aliens who are criminally charged and who have applied for CAT protection, a breakdown of the custody status of these aliens has been included on page 6. The detained category is broken down according to whether the alien is: 1) detained by the Immigration and Naturalization Service; or 2) held in federal, state or local criminal facilities and provided a removal hearing in those facilities in a program called the Institutional Hearing Program (''IHP''). The released category shows the number of aliens who were at one time detained by the Immigration and Naturalization Service and released on bond while a CAT application was pending. The non-detained category shows those aliens who have not been in custody during the entire pendency of their CAT application. In the non-detained category, an applicant may have been previously detained without EOIR's being notified. INS provides EOIR with the information concerning the custody status of aliens.
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    The number of decisions rendered by Immigration Judges in cases in which an alien in removal, deportation, or exclusion proceedings who has been criminally charged requests only protection under the Convention is displayed on page 7 of the statistics attachment. In fiscal year 1999, the Immigration Judges adjudicated 72 CAT-only applications filed by criminally charged aliens. One-half of these decisions were appealed to the Board. In fiscal year 2000, the Immigration Judges adjudicated 291 CAT-only applications for criminally charged aliens, of which 26 percent were appealed to the Board.

    The number of criminally charged aliens receiving protection under CAT, 103 in fiscal year 1999, is less than one percent of the total number of Immigration Judge decisions where the applicants filed for any type of relief. For fiscal year 2000, that number, 205, is less than four-tenths of one percent of the total number of Immigration Judge decisions where the applicants filed for any type of relief.

    Mr. Chairman and Members of the Subcommittee, that concludes my prepared statement. Judge Creppy and I welcome any questions either you or any Member of the Subcommittee may have.

ATTACHMENT 1

Table 1


ATTACHMENT 2

Table 2


ATTACHMENT 3

Table 3


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ATTACHMENT 4

Table 4


ATTACHMENT 5

Table 5


ATTACHMENT 6

Table 6


ATTACHMENT 7

Table 7


ATTACHMENT 8

Table 8


67347a.eps

67347b.eps

67347c.eps

67347d.eps

67347e.eps

67347f.eps

67347g.eps

    Mr. SMITH. Mr. Cooper?
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STATEMENT OF BO COOPER, GENERAL COUNSEL, IMMIGRATION AND NATURALIZATION SERVICE, UNITED STATES DEPARTMENT OF JUSTICE

    Mr. COOPER. Thank you, Mr. Chairman, members of the subcommittee. My name is Bo Cooper and I am the General Counsel of the Immigration and Naturalization Service and I am grateful for having been invited here today.

    First, I will speak about the regulations implementing the U.S. obligations under article 3 of the Convention Against Torture and then I will discuss the legislation dealing with human rights abusers and improving our ability to remove those people from the country.

    On the Torture Convention, our first year and a half under the regime of the new Torture Convention regulations has been a firm success, in our view. Meeting our obligations under the Torture Convention has not impeded our ability to enforce expeditiously the immigration laws. Preliminary statistics, as Mr. Rooney described, indicate that only a small number of torture claims have been adjudicated and that only a very small percentage of claimants are found to merit protection under article 3 of the Convention.

    The regulations were devised to articulate precise standards, but stringent ones, the contours of which are taking shape through the development of interpretive case law. The INS monitors as closely as we can these cases around the country to assure that the rule is being implemented accurately and uniformly. We see no need at this early stage for either regulatory or legislative reform and therefore oppose strongly section 12 of the bill that we are considering today, which would extend mandatory bars to the limited protection awarded under deferral of removal.
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    The Convention Against Torture imposes an absolute obligation not to return someone to a country where he or she would be tortured and the regulations were designed to reconcile carefully the absoluteness of our obligations with our need to protect the United States from becoming a haven for dangerous persons. Deferral of removal is not an immigration windfall for criminals. Instead, it offers bare minimum protection against torture and not an inch more. Section 12 would conflict with existing treaty and statutory obligations. In this country, we think it would generate a great deal of litigation, and internationally, it would impair our record and our efforts to play a role as a world leader in the campaign against torture.

    With respect to the efforts of Congress and the administration to ensure that the United States does not become a safe haven for human rights abusers, I note that in February, Associate Deputy Attorney General James Castello testified on H.R. 3058 and suggested that while we agreed entirely with the goals underlying that legislation, it was the Department's view that it was unnecessarily limited in that it would only expand removal authority to torturers and that there were other categories of human rights abusers that would fall within the net we wanted to reach and suggested that the administration was in the process of drafting a more comprehensive legislative package.

    We have aggressively tried to complete this package. As is often the case with complex legislation and a difficult problem, the process was time consuming and involved a great number of agencies in the development of legal principles that both achieved our policy objectives and are workable for those on the line who actually have to administer the provisions. I am pleased to report that on Monday, we formally transmitted a legislative proposal. I appreciate the patience of the subcommittee and we have worked throughout to try to be in communication about the status of this, and given the importance——
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    Mr. SMITH. Mr. Cooper, let me just interrupt you. This coming Monday, you are going to transmit?

    Mr. COOPER. It has been.

    Mr. SMITH. Oh, it has been.

    Mr. COOPER. It was informally transmitted last week, and then on Monday of this week, it was formally transmitted. As I said, we had hoped to get it here at a much earlier date, but this is just the time it took us to get a bill that we think is correct.

    Mr. Castello stated that war crimes, crimes against humanity, and persecution should be added to the INA. The bill introduced by the chairman makes these amendments, but as we developed the administration's proposal, it became apparent to us that there might be problems with using those terms within the context of the Immigration and Nationality Act. War crimes and crimes against humanity, for example, are complicated criminal concepts that have a lot of elements each that could limit the effectiveness practically of this legislation. Those terms require complicated, sensitive determinations also about situations in countries abroad that could have significant effects on the foreign policy of the United States.

    And so in the end, we opted not to include persecutors, for example, since its definition is evolving in the case law and consular officials who are having to make fairly prompt decisions in the context of giving out visas would have great difficulty in applying it.

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    So we chose instead to adapt the principles in international law by targeting the underlying acts that form the key elements of human rights and humanitarian law violations. Our proposal targets aliens who have participated in or been responsible for the list of 12 acts—homicide, disappearance, genocide, rape, torture, kidnapping, mutilation, prolonged and arbitrary detention, enslavement, forced pregnancy, forced sterilization, and the recruitment for use in armed conflict of persons under the age of 15. In order to place these 12 crimes within the human rights framework, the proposal would require that the acts be, as opposed to just common crimes, undertaken in whole or significant part for a political, religious, or discriminatory purpose.

    I would be glad to discuss the details further if you have questions about them, but for the time being, I would like to thank you for your attention to the issue and I think we are in complete agreement about the goals behind the various legislative proposals and we would request the most careful consideration of our legislative proposal. I thank you for the time you have extended to me and I would be glad to try to answer whatever questions you have.

    Mr. SMITH. Thank you, Mr. Cooper.

    [The prepared statement of Mr. Cooper follows:]

PREPARED STATEMENT OF BO COOPER, GENERAL COUNSEL, IMMIGRATION AND NATURALIZATION SERVICE, UNITED STATES DEPARTMENT OF JUSTICE

    Mr. Chairman, Congresswoman Jackson Lee and Members of the Subcommittee, my name is Bo Cooper and I am the General Counsel of the Immigration and Naturalization Service (INS). Thank you for inviting me to speak about our experiences since the Department of Justice promulgated regulations implementing U.S. obligations under Article 3 of the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture), human rights abusers, and the provisions of the bill recently introduced by Chairman Smith entitled the ''Human Rights Abusers Accountability Act of 2000.''
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    First, I will address issues relating to the Convention Against Torture. Then, I will discuss the Administration's legislative proposal, the ''Human Rights Abusers Act of 2000,'' and the particular provisions of Chairman Smith's bill that was introduced last Friday.

IMPLEMENTATION OF THE CONVENTION AGAINST TORTURE

    The interim regulation was published on February 19, 1999 and became effective on March 22, 1999. On June 29, 1999, the Immigration and Naturalization Service appeared before the House Subcommittee on International Operations and Human Rights, at which time I introduced the new torture regulations and explained how they were carefully designed to strike the proper balance between twin goals: (1) ensuring that no person was removed from the United States under circumstances that would violate Article 3 of the Convention Against Torture; and (2) ensuring that the new procedures do not unduly disrupt the issuance and execution of removal orders.

    Last week marked the eighteenth month of practice under the torture regulations. This initial period under the new rule has been an outstanding success. Some have expressed concern that the new torture regulations are being abused by criminal aliens who are ineligible for all other relief from removal, but who apply for torture protection as a means of delaying their removal from the United States. When drafting the new rule, we anticipated this possibility. The torture rule was crafted to minimize the incentives for such abusive, dilatory tactics.

    Such charges of abuse are exaggerated. We have been very pleased with the implementation of the torture regulations over the past eighteen months. Fulfilling our international obligations under the Convention Against Torture has not impeded our ability to expeditiously enforce our immigration laws and remove criminal aliens from the United States. At the same time, I want to underscore that the torture regulations were promulgated because the United States signed, and the Congress provided its advice and consent to United States ratification of the Convention Against Torture, under which our nation made a commitment not to return any person to a place where he or she is more likely than not to be tortured.
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    Let me now draw your attention to statistics from the Executive Office for Immigration Review (EOIR) that shed significant light on our experience under the new regulations. Below a chart breaks down the number and disposition of Convention Against Torture claims adjudicated during the sixteen month period from March 22, 1999 to July 31, 2000. Most saliently, this chart indicates (1) that only a small number of cases have been adjudicated, and (2) that only a small percentage of claims asserted are actually granted protection under the Convention Against Torture.

Table 9



    During the sixteen month period, less than 12,000 Convention Against Torture claims were adjudicated, an average of 750 claims per month nationwide. By comparison, during the same sixteen month period, over 75,000 asylum claims were adjudicated by immigration judges, or almost 4,700 claims per month nationwide. Far from impairing effective enforcement of the immigration laws, the number of Convention Against Torture claims has been small, especially relative to asylum applications.

    Even more importantly, of the 11,438 claimants, only 581 were granted protection. That is, only 5.1 percent of all claimants could meet the higher burden of proof required for Convention Against Torture protection than the burden necessary for asylum. By comparison, some 15.8 percent of asylum claims raised in removal proceedings are granted each year. While we obviously do not target any particular grant rate for either asylum or torture protection, the difference in such rates for the two related forms of protection provides strong evidence that the stringent standards set out in the new torture regulations are not resulting in overbroad protection of criminal aliens.

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    Of those 581 grantees, 286 (49 percent) were granted ''deferral of removal,'' a more limited form of torture protection reserved for those otherwise barred from receiving asylum, statutory withholding of removal, or withholding of removal under the Convention Against Torture. Deferral of removal is a much narrower form of relief than asylum, statutory withholding of removal, or even withholding of removal under the Convention Against Torture. First, deferral of removal does not confer any lawful or permanent immigration status on the alien. Second, deferral of removal only precludes the INS from removing the alien to the particular country in which it has been determined that the alien is more likely than not to be tortured. The alien may be removed to another country at any time. Third, the INS may continue to detain an alien granted deferral of removal. Fourth, an alien's deferral may be terminated upon changed conditions through an expedited motion by the INS. Finally, an immigration judge who grants an alien deferral of removal must warn the alien of these limitations.

    Our approach to adjudicating claims under the Convention Against Torture has not impeded enforcement efforts for two reasons. First, as mentioned above, the torture regulations articulate clear standards that closely track the language of the Convention itself and carefully avoid any expansion of the obligations imposed by it. The precision of those standards is evidenced by the relative uniformity of dozens of unpublished decisions by the Board of Immigration Appeals. The low grant rate (5.0 percent) indicates that the rule's stringent burden of proof is being applied faithfully and accurately.

    Second, the torture regulations do not generally afford aliens a second or third opportunity to apply for protection at hearings separate from the original removal proceedings. When the INS developed its strategy for hearing Convention Against Torture claims, we believed it would be administratively efficient to generally require that such claims be raised in removal proceedings. That is, Convention Against Torture claims are generally raised in a single, unified hearing, most often as an alternative to asylum and statutory withholding of removal. While separate standards apply for asylum, statutory withholding of removal, and Convention Against Torture protection, we believe that an individual seeking Convention Against Torture protection should be expected to make such claims before an immigration judge in the course of removal proceedings. It is clearly in the interest of administrative efficiency for an adjudicator to assess the merits of all three claims at the hearing stage. Similarly, those who wish to assert torture claims in more accelerated procedures—such as expedited removal under section 235 of the Act, administrative removal for criminal aliens under section 238, and reinstatement under section 241(b)(5)—must do so at the same time and in the same manner as they normally would for asylum and/or statutory withholding of removal. Thus little additional time or expenditure is generally required to adjudicate claims under even these more accelerated procedures. These unified approaches to adjudication are the most important reason why the torture regulations have not impaired our ability to enforce the immigration laws.
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    There is one subset of cases where Convention Against Torture claims have been raised after a final decision had been rendered. The regulations permit motions to reopen for persons who had a final decision prior to the March 22, 1999 effective date of the regulations. We believed it was appropriate to give persons this option, where they did not previously have an opportunity to apply for torture protection in immigration court. These cases most likely made it appear that the Convention Against Torture could be used as a dilatory tactic. While we expected delays in those cases, that caseload is rapidly coming to a close, since it was purely a transitional feature of the new regulations.

    The torture regulations were carefully designed to balance (1) our commitments under Article 3 of the Convention Against Torture and (2) our ability to enforce U.S. immigration laws. As for the first goal, faithfully complying with our international obligations, we are confident that the regulations afford a transparent adjudicatory system with well-articulated standards. The structure of the torture regulations closely parallels our long-standing approach to asylum and statutory-based withholding of removal. The contours of new elements unique to Convention Against Torture protection, such as the meaning of ''torture'' and government ''acquiescence,'' are gaining shape through the development of interpretive caselaw.

    Of course, it is still early to assess fully the progress of interpretive law development. Convention Against Torture cases are wending their way up the ladder of administrative adjudication. The Board of Immigration Appeals (BIA, or the Board) recently issued its first published decision, Matter of S–V–, that addresses the scope of the term government ''acquiescence.'' The Board has also properly applied the torture regulations in dozens of unpublished, non-precedential decisions. To date, no federal appellate court has reviewed an administrative decision interpreting the standards of the torture regulations. A decision on the merits of a Convention Against Torture claim can be appealed to a federal court only through the same, narrow mechanism available for asylum and statutory withholding appeals. The INS continues to monitor closely the development of case law throughout the country to assure the regulations are being implemented accurately and uniformly.
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    Let me conclude this portion of my statement by saying that our early experience under the torture regulations has been extremely successful. While the regulations may need further development in the future, such action would be premature at this early stage in our experience. Similarly, the INS believes there is no cause for legislative action at this time. Our best course of action is to continue to monitor closely the development of case law pertaining to Convention Against Torture protection and to take action when necessary to avoid an improper loosening of the legal standards. In so doing, we can be assured that adjudicators, government attorneys, and the private bar understand and properly apply the standards set out in the regulations.

HUMAN RIGHTS ABUSERS ACT OF 2000

    Now, I would like to turn to the efforts of Congress and the Administration to enhance the ability of the United States Government to deny visas and admission, to remove, and to deny relief to aliens who have engaged in or been otherwise responsible for serious violations of human rights and humanitarian law. You may recall that on February 17, 2000, Associate Deputy Attorney General James Castello testified before this Subcommittee regarding H.R. 3058, the ''Anti-Atrocity Alien Deportation Act,'' introduced by Congressman Mark Foley. Mr. Castello testified that the Department of Justice ('the Department'') recognized that the current immigration laws do not provide sufficiently strong bars for human rights abusers, but believed that H.R. 3058 was unnecessarily limited by targeting only those who have committed torture. Mr. Castello explained that the Department was in the process of drafting legislation to cover additional forms of human rights abuse and expressed the Department's willingness to work with the Subcommittee to move forward with comprehensive legislation.
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    The Administration continues to believe that legislative action is necessary to deny admission to, to remove, and to deny relief to those who have participated in or been responsible for serious violations of human rights or humanitarian law. Since February, the Administration has worked tirelessly to fashion the best possible bill on human rights abusers. In this process, we focused specifically on the need to develop legislation that both a consular officer and an immigration officer, as well as an immigration judge handling a proceeding, could administer. I am happy to report that our efforts have reached conclusion and the Administration informally forwarded a final bill to Congress late last week. The bill was formally transmitted to Congress earlier this week. A copy of the bill is attached to this testimony.

    We appreciated your patience and that of your staff, Mr. Chairman, as numerous inquiries were made as to the status of our bill. We recognize the importance of this issue and had hoped to be able to forward the bill to you at an earlier date. As is often the case with complex legislation that involves numerous agencies and the need to develop legal principles that both reflect our policy objectives and will be practicable to implement on a day-to-day basis, the process was time consuming.

    In February, Mr. Castello expressed the Department's belief that war crimes, crimes against humanity, and persecution should be added to the Immigration and Nationality Act (INA) as grounds of inadmissibility, deportability and as bars to relief. The bill introduced by the Chairman makes these amendments to the INA. As we developed the Administration proposal, however, it became apparent that there were potential problems with adding those terms. ''War crimes'' and ''crimes against humanity'' are complex criminal concepts that have multiple elements. As a practical matter, the need to establish all the elements of a war crime or crime against humanity could limit the effectiveness of the legislation by requiring proof of a large number of elements, some of which would be difficult to establish. These terms also require complex, sensitive determinations about situations in foreign countries that could have significant ramifications for the foreign policy of the United States. For instance, to find that a ''war crime'' was committed, a determination must be made that an international armed conflict existed at the time the crime was committed or, in some cases, that an internationally protected person was the victim of the crime. The introduction of such sensitive political questions into visa and immigration adjudications seemed undesirable and could be counterproductive. In addition, the law of war crimes and crimes against humanity is a body of international substantive criminal law that has traditionally been developed in the context of courts martial or international criminal tribunals, not in the context of civil administrative proceedings such as immigration proceedings. Indeed, consular and immigration officers historically, and with only a few recent exceptions, have not been asked to determine whether an alien may have committed a crime. Instead they have denied visas or entry to criminal aliens based on criminal convictions or confessions. We wanted to find a way to exclude abusers without turning consular and immigration proceedings into criminal proceedings, and without having to coordinate the application of substantive international criminal law by courts martial or international criminal tribunals with consular or immigration proceedings.
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    We also decided not to include a broad exclusion for ''persecutors.'' The term ''persecution'' has never been defined in statute or by treaty. Although the word ''persecution'' is found in the 1951 Convention Relating to the Status of Refugees and was added to domestic immigration law in the Refugee Act of 1980, the definition of ''persecution'' has evolved through Board of Immigration Appeals and federal court precedent and continues to evolve.

    In short, both the Department of Justice and the Department of State concluded that it would be extremely difficult for consular officers overseas, who handle roughly 7 million visa applications, and immigration officers at ports of entry, who inspect millions of visitors, to make complex legal determinations regarding whether an alien had engaged in a ''war crime,'' a ''crime against humanity,'' or persecution. We recognized that we had to develop more specific, workable standards that would be more readily understood and that could be implemented more straightforwardly.

    Consequently, the Administration chose to adapt the principles of international human rights and humanitarian law for use within the context of adjudications under the INA. The grounds of inadmissibility, removal and the bars to relief in the Administration's proposal include the underlying actions that form the key elements of human rights and humanitarian law violations. For example, ''war crimes'' include, but are not limited to acts such as: willful killing, torture, compelling service in hostile forces, mutilation, unlawful confinement, attacking civilians, rape, forced pregnancy, enforced sterilization, and conscripting children, when they occur in the context of an international armed conflict and when other conditions exist. Similarly, ''crimes against humanity'' include, but are not limited to acts such as: murder, extermination, enslavement, imprisonment, torture, rape, forced pregnancy, enforced sterilization, and enforced disappearance, again when certain other elements exist.
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    The Administration's proposal applies to aliens who have participated in or been responsible for the following twelve identical or very similar acts: homicide, disappearance, genocide, rape, torture, kidnapping, mutilation, prolonged and arbitrary detention, enslavement, forced pregnancy, forced sterilization, and the recruitment for use in armed conflict of persons under the age of fifteen. Under our proposal, however, these acts will more readily result in a visa denial or ineligibility for immigration benefits because it will not be necessary to find that all of the preconditions to a war crime or crime against humanity exist. Instead, our proposal defines each of the twelve acts and sets forth clearly the kind of purpose and the degree of participation that the alien must have in order to be excludable for having committed such an act. It is essential to review the definitions, which would be added to Section 101 of the INA, to understand the full scope of our proposal.

    As just noted, the Administration's proposal also addresses the degree of participation required to result in an ineligibility. We believe we have identified an appropriate range of levels of complicity in such human rights or humanitarian law violations. An alien is inadmissible, removable or ineligible for relief only if the alien ''committed, ordered, incited, assisted, or otherwise knowingly participated in or been responsible for'' any of the twelve specified acts. The statutory language clearly states that an alien is responsible for certain actions if, while in a position of power or authority, the alien knew or should have known that such acts were being or were likely to be committed, and he failed to take all necessary and reasonable steps within his power or authority to prevent or stop such acts. This reflects the principle of command responsibility: that persons in positions of power or authority should be held accountable for the actions of others in certain instances. This language is significant because in many cases there are aliens who have been in charge of regimes or groups carrying out atrocities and there is no direct proof of the alien giving a particular order or engaging personally in the atrocities. Adapting the principle of command responsibility and including it in our proposal will allow us to deny visas and other immigration benefits to those who were part of the decision making process that led to the commission of such atrocities. The other specified actions—''committed, ordered, incited, assisted, or otherwise knowingly participated in''—are intended to reach the behavior of those aliens more directly or personally associated with the covered acts. The Administration believes that the specific range of conduct covered by our proposal will reach many aliens who have allegedly been involved in human rights and humanitarian law violations, and will ensure that senior level persons are within the reach of the law for acts which would not have occurred without their acquiescence or endorsement.
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    In order to place these twelve common crimes within the framework of human rights or humanitarian law violations, the proposal further requires that the acts must be undertaken in whole or in significant part for a political, religious or discriminatory purpose. The language—''for a political, religious, or discriminatory purpose''—contemplates actions motivated by the actor's political or religious purposes, as well as actions motivated by a particular trait held by or imputed to the victim. The statutory language clarifies this point by providing explicitly that a discriminatory purpose includes acts taken ''because of the victim's political opinion, nationality, race, religion, gender, sexual orientation, or membership in a particular clan, tribe, caste or ethnic group.'' These traits may be actually held by the victim or imputed to the victim by the perpetrator. The motivation for these acts is broader than what can be considered in determining whether an alien has engaged in persecution because case law requires that the persecution be taken because of a particular trait held by or imputed only to the victim.

    Also, the Administration's bill adopts a ''reasonable grounds to believe'' standard to establish inadmissibility. The alien is inadmissible if the ''consular officer or immigration officer knows, or has reasonable grounds to believe, [that the alien] has committed, ordered, incited, assisted, or otherwise knowingly participated in or been responsible for any of the acts, undertaken in whole or in significant part for a political, religious, or discriminatory purpose.'' Neither the ground of inadmissibility nor the grounds of removal require a conviction, criminal charge, or confession. The ''reasonable grounds to believe'' standard, coupled with the requirement that the act be undertaken for political, religious or discriminatory purposes, will facilitate our ability to exclude human rights abusers and humanitarian law violators from the United States while maintaining the traditional requirement of a conviction or confession before a person is excluded for having committed a common law crime without a human rights or humanitarian law dimension.
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    Further, the Administration's proposal authorizes the Secretary of State to determine that the presence of certain aliens in the United States is incompatible with United States policy regarding the promotion of international human rights or humanitarian law. This authority is consistent with the Secretary's overall authority to conduct foreign relations and with United States policy to monitor and promote the international observance of human rights and humanitarian law. The authority would complement the Secretary's existing authority in Sections 212(a)(3)(C) and 237(a)(4)(C) of the INA to deny a visa to or render deportable an alien, if the alien's entry or presence would have potentially serious adverse foreign policy consequence for the United States. These existing provisions could be used, in appropriate cases, to deny visas to or to remove aliens who have participated in or been responsible for serious human rights or humanitarian law violations if the standard is met. It is important to note that, due to the high standard, the Secretary has used the existing authority in only three deportation cases in the past decade. The proposed additional provision adopts a standard more directly reflective of United States interest in the promotion of human rights and humanitarian law. Without this provision, the United States may still find itself used as a refuge by aliens whose presence in the United States is offensive to our fundamental values. For example, we may find in the United States aliens who are closely and symbolically associated with serious human rights abuses, but there is not clear and convincing evidence that they personally committed a human rights abuse. The Secretary's determination regarding a particular alien would render the alien inadmissible, removable, and ineligible for relief. A determination, however, would not preclude protections that implement U.S. obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (deferral of removal) and the 1967 Protocol Relating to the Status of Refugees (withholding of removal).

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    We note that your bill included a defense for aliens who may claim that they engaged in the covered behavior under duress. We originally intended to include such a defense because there is a similar defense in the International Criminal Court (ICC) statute. However, in further analyzing the issue in the context of the underlying conduct now covered by the Administration's proposal, such as homicide, rape, and kidnapping, we decided that a duress defense was neither necessary nor appropriate. The grounds of inadmissibility focus on very serious acts and require an element of intent.

    Under the Administration's proposal, the proposed grounds of inadmissibility, like most grounds of inadmissibility, can be waived for nonimmigrants. This is consistent with how other grounds of inadmissibility, even the grounds relating to past participation in terrorist activity, are applied to nonimmigrants. This will allow those grounds to be waived when it may be in the interests of the United States to admit an alien temporarily. Furthermore, these grounds, like the admissibility grounds enumerated in section 102 of the INA, will not apply to aliens traveling to the United States on the diplomatic (A and G) visas.

    Our proposal would also make these grounds waivable for aliens intending to remain in the United States permanently if the alien committed one of the covered acts when the alien was under the age of 18 and the alien has the requisite immediate family relationship with a United States citizen or lawful permanent resident. The waiver is not mandatory in such cases, but allows the Attorney General to waive this ground of inadmissibility, removal, or bar to relief in her discretion. This waiver provision will provide discretion to deal with compelling cases. For example, in the case of a child who was unlawfully recruited for use in armed conflict and forced to commit a heinous act, the Attorney General would have the authority to waive this provision in her discretion so that the child could be admitted for family reunification purposes.
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    The Administration strongly opposes Section 12 of the Smith bill, which would extend the mandatory bars of withholding of removal to the more limited protection afforded under deferral of removal. The Senate adopted specific understandings, declarations and reservations when it approved the United States ratification of the Convention Against Torture. The Congress enacted legislation in 1998 instructing the Attorney General to implement U.S. obligations under the Convention Against Torture. The Convention Against Torture imposes an absolute obligation not to return someone to a country where he or she would be tortured. Clearly, this obligation might require us to protect undesirable individuals from being tortured. But this is the obligation the United States assumed, in recognition of the unacceptability of torture under any circumstances.

    In drafting the torture regulations, we were extremely careful to reconcile our absolute obligations under the Convention Against Torture with our need to protect the United States from becoming a haven for dangerous individuals. Deferral of removal is not an immigration benefit for criminals. Rather, it offers the narrowest, bare minimum protection against torture for those otherwise ineligible to remain in the United States.

    Neither the Convention Against Torture nor the 1998 implementing legislation permit the INS to extend the mandatory bars to deferral of removal. Section 12 would require the Attorney General to issue a rule inconsistent with existing treaty and statutory obligations. Domestically, Section 12 would generate a tremendous amount of litigation. Internationally, Section 12 would suggest that the United States is prepared to ignore its international law obligations under the Convention Against Torture and impair the United States' role as a world leader in the campaign against torture.
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    The Administration strongly supports the efforts being made to ensure that aliens who have participated in or been responsible for serious human rights violations or acts that form the key elements of serious violations of humanitarian law are rendered inadmissible, removable, and ineligible for immigration relief. The Administration requests careful consideration of our own legislative proposal. After many months of collaboration within the Executive Branch, we are persuaded that we have developed a proposal that will significantly advance the interests of the United States in keeping human rights and humanitarian law violators out of the United States. The Administration's proposal adopts a scheme more easily implemented by those charged with day-to-day application of the INA provisions, including consular officers, immigration officers and immigration judges. It is tailored to consular and immigration proceedings, and designed to facilitate the denial of visas, entry, and other benefits in appropriate cases. Because it adopts simpler and more easily administered standards, we believe that our legislative proposal will render more aliens who have participated in or been responsible for serious human rights or humanitarian violations inadmissible, removable and ineligible for relief.

    I appreciate the time you have extended to me to discuss these important issues and ask for your help to ensure that the United States is not a safe haven for those aliens who are participating in or are responsible for such atrocities. At this time, I would be happy to provide more details on the Convention Against Torture or our legislative proposal and to answer any other questions you may have.

A BILL

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To amend the Immigration and Nationality Act to prevent serious human rights or humanitarian law violators from being eligible for admission and other forms of immigration relief and for other purposes.

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ''Human Rights Abusers Act of 2000.''

SECTION 2. GROUNDS OF INADMISSIBILITY FOR HUMAN RIGHTS OR HUMANITARIAN LAW VIOLATORS.

    (a) Section 212(a) of the Immigration and Nationality Act of 1952, as amended, (the ''INA'') (8 U.S.C. 1182(a)) is amended by adding the following new paragraph at the end—

    ''(11) HUMAN RIGHTS AND RELATED GROUNDS.

    ''(A) In General.—Any alien who a consular officer or immigration officer knows, or has reasonable grounds to believe, has committed, ordered, incited, assisted, or otherwise knowingly participated in or been responsible for any of the following acts, undertaken in whole or in significant part for a political, religious, or discriminatory purpose:

    ''(i) homicide,
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    ''(ii) disappearance,

    ''(iii) genocide,

    ''(iv) rape,

    ''(v) torture,

    ''(vi) kidnapping,

    ''(vii) mutilation,

    ''(viii) prolonged, arbitrary detention,

    ''(ix) enslavement,

    ''(x) forced pregnancy,

    ''(xi) forced sterilization, or

    ''(xii) recruitment of persons under the age of 15 for use in armed conflict,

    ''is inadmissible.
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    ''An alien shall be considered responsible for an act listed above if, while in a position of power or authority, he knew or should have known that such acts were being or were likely to be committed, and he failed to take all necessary and reasonable steps within his power or authority to prevent or stop such acts. An act has been undertaken for discriminatory purpose if the act was undertaken because of the victim's political opinion, nationality, race, religion, gender, sexual orientation, or membership in a particular clan, tribe, caste or ethnic group.

    ''(B) WAIVER.—The Attorney General may, in the Attorney General's discretion, waive the application of subsection (A) in the case of an alien who is the parent, spouse, son or daughter of a United States citizen or lawful permanent resident and who was under eighteen years of age during all such participation in or responsibility for an act listed in subsection (A)(i)–(xii).

    ''(C) SECRETARY OF STATE DETERMINATION.—Any alien whose presence in the United States the Secretary of State determines would be incompatible with United States policy regarding the promotion of international human rights or humanitarian law is inadmissible.''.

    (b) Section 212(a)(3)(E) of the INA (8 U.S.C. 1182(a)(3)(E)) is amended by—

    (1) striking ''OR GENOCIDE'' from the title;

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    (2) striking clause (ii) of subparagraph (E);

    (3) striking the heading for clause (i); and

    (4) redesignating clauses (i)(I) through (i)(IV) as (i) through (iv), respectively.''.

SECTION 3. GROUNDS OF REMOVAL FOR HUMAN RIGHTS OR HUMANITARIAN LAW VIOLATORS.

    (a) Section 237(a) of the INA (8 U.S.C. 1227(a)) is amended by adding the following new paragraph—

    ''(7) HUMAN RIGHTS AND RELATED GROUNDS.

    ''(A) IN GENERAL.—Any alien who has committed, ordered, incited, assisted, or otherwise knowingly participated in or been responsible for any of the following acts, undertaken in whole or in significant part for a political, religious, or discriminatory purpose:

    ''(i) homicide,

    ''(ii) disappearance,

    ''(iii) genocide,

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    ''(iv) rape,

    ''(v) torture,

    ''(vi) kidnapping,

    ''(vii) mutilation,

    ''(viii) prolonged, arbitrary detention,

    ''(ix) enslavement,

    ''(x) forced pregnancy,

    ''(xi) forced sterilization, or

    ''(xii) recruitment of persons under the age of 15 for use in armed conflict,

''is deportable.

    ''An alien shall be considered responsible for an act listed above if, while in a position of power or authority, he knew or should have known that such acts were being or were likely to be committed, and he failed to take all necessary and reasonable steps within his power or authority to prevent or stop such acts. An act was undertaken for a discriminatory purpose if the act was undertaken because of the victim's political opinion, nationality, race, religion, gender, sexual orientation, or membership in a particular clan, tribe, caste or ethnic group.
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    ''(B) WAIVER.—The Attorney General may, in the Attorney General's discretion, waive the application of subsection (A) in the case of an alien who is the parent, spouse, son or daughter of a United States citizen or lawful permanent resident and who was under eighteen years of age during all such participation in or responsibility for an act listed in subsection (A)(i)–(xii).

    ''(C) SECRETARY OF STATE DETERMINATION.—Any alien whose presence in the United States the Secretary of State determines is incompatible with United States policy regarding the promotion of international human rights or humanitarian law is deportable.''.

    (b) Section 237(a)(4)(D) of the INA (8 U.S.C. 1227(a)(4)(D)) is amended to read as follows:

    ''(D) Assisted in Nazi persecution—Any alien described in section 212(a)(3)(E) is deportable.''.

SECTION 4. BAR TO REFUGEE STATUS FOR HUMAN RIGHTS OR HUMANITARIAN LAW VIOLATORS.

    Section 207(c)(3) of the INA (8 U.S.C. 1157(c)(3)) is amended by striking ''paragraph 2(C)'' and inserting in lieu thereof ''paragraph 2(C) or (11) unless the waiver in section 212(a)(11)(B) or 237(a)(7)(B) is granted.''.

SECTION 5. BAR TO ASYLUM FOR HUMAN RIGHTS OR HUMANITARIAN LAW VIOLATORS.

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    (a) Section 208(b)(2)(A) of the INA (8 U.S.C. 1158(b)(2)(A)) is amended by—

    (1) striking the ''or'' at the end of clause (v);

    (2) striking the period at the end of clause (vi) and inserting
in lieu thereof ''; or''; and

    (3) adding the following new subparagraph at the end:

    ''(vii) the alien is, or at any time has been, within the class of persons described in section 212(a)(11)(A) or (C) or 237(a)(7)(A) or (C), unless the waiver in section 212(a)(11)(B) or 237(a)(7)(B) is granted.''

    (b) Section 208(b)(3) of the INA (8 U.S.C. 1158(b)(3)) is amended by inserting '', provided the spouse or child does not fall within one of the exceptions in paragraph (b)(2)(A)(i)–(v) or (vii) of this subsection'' before the period at the end of the paragraph.

    (c) Section 208(c) of the INA (8 U.S.C. 1158(c)) is amended by redesignating paragraph (3) as paragraph (4), and by adding the following new paragraph (3):

    ''(3) SPECIAL RULE.—Asylum granted to an alien described in subsection (b)(2)(A) of this section may be terminated by the Attorney General regardless of whether the application was filed before, on, or after the enactment of this paragraph.''.

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SECTION 6. BAR TO ADJUSTMENT OF STATUS OF REFUGEES FOR HUMAN RIGHTS OR HUMANITARIAN LAW VIOLATORS.

    Section 209(c) of the INA (8 U.S.C. 1159(c)) is amended by striking ''paragraph 2(C)'' and inserting in lieu thereof ''paragraph 2(C) or (11) unless the waiver in section 212(a)(11)(B) or 237(a)(11)(B) is granted.''.

SECTION 7. BAR TO WITHHOLDING FOR HUMAN RIGHTS OR HUMANITARIAN LAW VIOLATORS.

    Section 241(b)(3)(B) of the INA (8 U.S.C. 1231(b)(3)(B)) is amended by—

    (1) striking the ''or'' at the end of clause (iii);

    (2) striking the period at the end of clause (iv) and inserting ''; or''; and

    (3) adding the following new clause at the end:

    ''(v) the alien is, or at any time has been, within the class of persons described in section 212(a)(11)(A) or 237(a)(7)(A) unless the waiver in section 212(a)(11)(B) or 237(a)(7)(B) is granted.''.

SECTION 8. BAR TO GOOD MORAL CHARACTER FOR HUMAN RIGHTS OR HUMANITARIAN LAW VIOLATORS.

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    Section 101(f) of the INA (8 U.S.C. 1101(f)) is amended by—

    (1) striking the period and inserting a semicolon at the end of paragraph (f)(8); and

    (2) adding the following new paragraph (f)(9) at the end:

    ''(9) one who is, or who at any time has been, within the class of persons described in section 212(a)(11)(A) or (C) or 237(a)(7)(A) or (C) of this Act, unless the waiver in section 212(a)(11)(B) or 237(a)(7)(B) is granted.''.

SECTION 9. BAR TO CANCELLATION OF REMOVAL FOR HUMAN RIGHTS OR HUMANITARIAN LAW VIOLATORS.

    Section 240A(a) of the INA (8 U.S.C. 1229b(a)) is amended by—

    (1) striking ''and'' in paragraph (2);

    (2) striking the period at the end of paragraph (3) and inserting in lieu thereof '', and''; and

    (3) adding the following new paragraph (4) at the end:

    ''(4) is not one who is, or who at any time has been, within the class of persons described in section 212(a)(11)(A) or (C) or 237(a)(7)(A) or (C), unless the waiver in section 212(a)(11)(B) or 237(a)(7)(B) is granted.''.
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SECTION 10. BAR TO SPECIAL AGRICULTURAL WORKERS FOR HUMAN RIGHTS OR HUMANITARIAN LAW VIOLATORS.

    Section 210(c)(2)(B)(ii) of the INA (8 U.S.C. 1160(c)(2)(B)) is amended by adding the following subclause (V) at the end:

        ''(V) Paragraph (11) (relating to human rights and humanitarian law violators), unless the waiver in section 212(a)(11)(B) or 237(a)(7)(B) is granted.''

SECTION 11. BAR TO ADJUSTMENT OF CERTAIN ENTRANTS BEFORE JANUARY 1, 1982, TO THAT OF PERSON ADMITTED FOR LAWFUL RESIDENCE FOR HUMAN RIGHTS OR HUMANITARIAN LAW VIOLATORS.

    Section 245A(d)(2)(B)(ii) of the INA (8 U.S.C. 1255a(d)(2)(B)(ii)) is amended by inserting the following new subclause (V) after subclause (IV):

        ''(V) Paragraph (11) (relating to human rights and humanitarian law violators), unless the waiver in section 212(a)(11)(B) or 237(a)(7)(B) is granted.''.

SECTION 12. BAR TO ADJUSTMENT OF STATUS WITH RESPECT TO CERTAIN SPECIAL IMMIGRANTS.

    Section 245(h)(2)(B) of the INA (8 U.S.C. 1255(h)(2)(B)) is amended by striking ''and (3)(E)'' and inserting ''(3)(E), and (11) unless the waiver in section 212(a)(11)(B) or 237(a)(7)(B) is granted.''.
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SECTION 13. CRIMINAL PENALTIES FOR REENTRY BY HUMAN RIGHTS OR HUMANITARIAN LAW VIOLATORS.

    Section 276(b) of the INA (8 U.S.C. 1326(b)) is amended by—

    (1) striking ''or'' at the end of paragraph (b)(3) and inserting a '';'';

    (2) striking the period at the end of paragraph (b)(4) and inserting in lieu thereof ''; or''; and

    (3) adding the following new paragraph (5):

    ''(5) who has been excluded from the United States pursuant to section 212(a)(11) or has been removed from the United States pursuant to section 237(a)(7) who thereafter, without the permission of the Attorney General, enters, attempts to enter, or is at any time found in, the United States shall be fined under title 18, United States Code, and imprisoned not more than ten years, or both.''.

SECTION 14. AIDING OR ASSISTING CERTAIN ALIENS TO ENTER THE UNITED STATES.

    Section 277 of the INA is amended by striking ''or 212(a)(3) (other than subparagraph (E) thereof)'' and inserting '', 212(a)(3) (other than subparagraph (E) thereof), or 212(a)(11)''.

SECTION 15. DEFINITIONS.
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    Section 101 of the INA (8 U.S.C. 1101)) is amended by adding the following new subsection—

    ''(i) As used in sections 212(a)(11)(A) and 237(a)(7)(A)—

    ''(1) The term 'homicide' means the unlawful and intentional killing, extrajudicially or otherwise, of a person. A homicide is unlawful if it is unlawful under the laws of the place where it is committed or if it would have been unlawful under the laws of the United States or any State, had it been committed in the United States.

    ''(2) The term 'disappearance' means the arrest, detention, or abduction of a person carried out on behalf of, or with the authorization, support, or acquiescence of, a government or political organization that has failed to disclose the fate or whereabouts of the missing person.

    ''(3) The term 'genocide' means conduct that is genocide as defined in section 1091(a) of title 18, United States Code, or that would be genocide as defined in that section if the conduct were committed in the United States or by a United States national.

    ''(4) The term 'rape' means invading the body of a person by conduct resulting in penetration of any part of the body of the victim or perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or other part of the body, by force, or by threat of force or coercion (such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment), or when the person invaded was incapable of giving genuine consent.
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    ''(5) The term 'torture' has the meaning in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, subject to any reservations, understandings, or declarations adopted by the Senate upon ratification of the Convention.

    ''(6) The term 'kidnapping' means the unlawful seizure, confinement, decoy, abduction, or carrying away and holding for ransom or reward or otherwise of a person. A kidnapping is unlawful if it is unlawful under the laws of the place where it is committed or if it would have been unlawful under the laws of the United States or any State had it been committed in the United States.

    ''(7) The term 'mutilation' means any nonconsensual act (other than one pursuant to lawful judicial sanctions) resulting in the permanent disfiguring or the permanent disabling of a person or removing of an organ or appendage from a person, where such action causes death or seriously endangers the physical or mental health of that person and is not justified by his or her medical condition.

    ''(8) The term 'prolonged, arbitrary detention' means the protracted and arbitrary deprivation of physical liberty.

    ''(9) The term 'enslavement' means the exercise of any and all powers attaching to a claimed right of ownership over a person, such as purchasing, selling, lending or bartering a person, or imposing on a person a similar deprivation of liberty. The term does not include lawful confinement pursuant to due process of law.

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    ''(10) The term 'forced pregnancy' means the confinement of a woman who has been forcibly made pregnant, with the intention to force her to give birth in order to affect the ethnic or racial composition of the population.

    ''(11) The term 'forced sterilization' means the nonconsensual deprivation of biological reproductive capacity that is not justified by the person's medical condition.

    ''(12) The term 'recruitment of persons under the age of 15 for use in armed conflict' includes the use of such persons in armed conflict.''.

SECTION 16. EFFECTIVE DATE.

    The provisions of this Act shall be effective on the date of enactment, and shall apply without exception to all decisions and actions taken on or after the date of enactment, regardless of whether the conduct occurred before, on, or after the date of enactment.

SECTION-BY-SECTION ANALYSIS OF THE ''HUMAN RIGHTS ABUSERS ACT OF 2000.''

I. BACKGROUND.

    This legislation, entitled the ''Human Rights Abusers Act of 2000,'' will significantly strengthen the ability of the Executive Branch to ensure that aliens who have participated in or been responsible for serious human rights violations or acts that form the key elements of serious violations of humanitarian law are denied visas, admission to the United States, and most immigration benefits such as asylum, adjustment of status to lawful permanent residence, or naturalization. It will also ensure that such aliens are removable from the United States. If enacted, these prohibitions would be integrated into the appropriate sections of the Immigration and Nationality Act (INA).
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    This legislation:

(a) makes aliens who have participated in or been responsible for serious human rights violations or acts that constitute the key elements of serious violations of humanitarian law inadmissible to and removable from the United States and ineligible for most immigration benefits;

(b) applies to homicide, disappearance, genocide, rape, torture, kidnapping, mutilation, prolonged arbitrary detention, enslavement, forced pregnancy, forced sterilization, and the recruitment for use in armed conflict of persons under the age of 15, when such acts are undertaken in whole or in significant part for a political, religious, or discriminatory purpose;

(c) adopts a ''reasonable grounds to believe'' standard for denial of visas and admission to aliens who have participated in or been responsible for such conduct, rather than requiring a conviction or admission to the essential elements of the crime involved;

(d) allows the Attorney General to waive this ground of inadmissibility for nonimmigrants and for certain immigrants who participated in or were responsible for such conduct when they were minors; and

(e) allows the Secretary of State to determine that the presence of certain aliens in the United States is incompatible with United States policy regarding the promotion of international human rights or humanitarian law.

    This legislation maintains the traditional burdens of proof in immigration law. For example, those seeking admission or who are in the United States without having been admitted retain the burden to prove ''clearly and beyond doubt'' that they are admissible to the United States. The government, however, has the burden to prove that an admitted alien present in the United States is removable by ''clear and convincing'' evidence. This legislation draws on accepted principles of international law and on treaties the United States has ratified. It should not, however, be seen as reflecting the position of the United States on specific criminal offenses under international law. For example, principles of international humanitarian law have been adapted for use within the context of adjudications under the INA. Thus, instead of incorporating all of the elements of an offense, the legislation adopts the key elements and avoids the need for consular and immigration officers to inquire into such complex and sensitive issues as whether an armed conflict existed at the time the covered conduct occurred.
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II. PROPOSED PROVISIONS OF THE ''HUMAN RIGHTS ABUSERS ACCOUNTABILITY ACT OF 2000.''

Section 1. Short Title.

    This states the title of the Act is the ''Human Rights Abusers Act of 2000.'' This short form is adopted for convenience even though the proposed bill would cover aliens who have participated in or been responsible for acts similar to violations of humanitarian law, as well as aliens who have participated in or been responsible for certain human rights violations.

Section 2. Grounds of Inadmissibility for Serious Human Rights and Humanitarian Law Violators.

A. New Subparagraph 212(a)(11)(A).

    This section would add to paragraph 212(a) of the INA a new subparagraph (11)(A), which would establish new grounds of inadmissibility for aliens for whom there are ''reasonable grounds to believe'' that they have participated in or been responsible for serious human rights violations or acts similar to humanitarian law violations. By creating this ground of inadmissibility, aliens who have participated in or been responsible for the covered conduct are statutorily ineligible to be issued visas, to enter the United States, or to adjust to lawful permanent residence status. This new subparagraph sets out the conduct that will form the basis for denial.

    The proposed grounds of inadmissibility, like other existing grounds of inadmissibility other than specific security and related grounds, will not apply to the diplomatic (A and G) visas enumerated in Section 102 of the INA. This ensures that the legislation will not interfere with the President's constitutional authorities to receive ambassadors and conduct foreign relations, and that the new provisions will be administered in a manner consistent with U.S. obligations to the United Nations under international law.
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    The new subparagraph 212(a)(11)(A) (and the parallel new subparagraph 237(a)(7)(A)) would set out twelve specific acts that constitute grounds of inadmissibility when undertaken in whole or in significant part for a political, religious or discriminatory purpose. Section 15 of the proposed legislation defines the twelve acts and would be incorporated into Section 101 of the INA. To clearly understand the scope of the covered conduct it is necessary to examine the introductory clauses to the new subparagraph, as well as each of the twelve acts and their definitions. The twelve acts are: homicide; disappearance; genocide; rape; torture; kidnapping; mutilation; prolonged, arbitrary detention; enslavement; forced pregnancy; forced sterilization; and recruitment of persons under the age of 15 for use in armed conflict. Neither a criminal conviction nor criminal charge nor a confession is required in order for an alien to be inadmissible or removable under the new grounds added in Sections 2 and 3 of the proposed legislation.

    The introductory clauses of the new INA subparagraph 212(a)(11)(A) (and those of the parallel new subparagraph 237(a)(7)(A)) will trigger operation of the inadmissibility ground if an alien has ''committed, ordered, incited, assisted, or otherwise knowingly participated in or been responsible for'' any of the twelve specified acts, and if the act was undertaken in whole or in significant part for a political, religious or discriminatory purpose. The statutory language clearly states that an alien is responsible for certain actions if, while in a position of power or authority, the alien knew or should have known that such acts were being or were likely to be committed, and he failed to take all necessary and reasonable steps within his power or authority to prevent or stop such acts. This reflects the principle of command responsibility, that persons in positions of power or authority should be held accountable for the actions of others in some instances. The other actions—''committed, ordered, incited, assisted, or otherwise knowingly participated in''—are intended to reach the behavior of others more directly or personally associated with the covered acts. Attempts and conspiracies to commit these crimes are encompassed in the ''otherwise knowingly participated in'' language. The word ''knowingly'' is used before ''participated'' to make explicit with respect to it the same knowledge requirement that is implicit in the concepts of ''committed,'' ''ordered,'' ''incited,'' and ''assisted.'' This language addresses an appropriate range of levels of complicity for which aliens should be held accountable.
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    The listed acts will trigger inadmissibility only if they are undertaken ''in whole or in significant part for a political, religious or discriminatory purpose.'' The language—''for a political, religious, or discriminatory purpose''—contemplates actions taken because of the actor's political or religious purposes, as well as actions taken because of a particular trait held by or imputed to the victim. The statutory language clarifies this point by providing explicitly that a discriminatory purpose includes acts taken ''because of the victim's political opinion, nationality, race, religion, gender, sexual orientation, or membership in a particular clan, tribe, caste or ethnic group.'' These traits may be actually held by the victim or imputed to the victim by the perpetrator. Further, the purposes of all actors need to be considered in making a determination about whether an act was undertaken ''in whole or in significant part'' for a particular purpose. For example, the purpose of one actor could be attributed to another who participated or was responsible for carrying out the act. An alien who acts with knowledge of the underlying purpose and is paid for such action would fall within this ground of inadmissibility, even if his or her primary motivation were pecuniary.

B. New Subparagraph 212(a)(11)(B)

    This subparagraph (and the parallel new subparagraph 237(a)(7)(B)) provides for a waiver for a minor who participated in or was responsible for conduct covered by the legislation when he or she was less than eighteen years of age. The Attorney General may, in her discretion, waive the application of this ground of inadmissibility for such an alien, if the alien has a parent, spouse, son, or daughter who is a United States citizen or lawful permanent resident. This would allow an alien to enter the United States with an immigrant visa or to adjust to lawful permanent residence if the alien was under eighteen years of age when he participated in or was responsible for such conduct, has the requisite family relationship, and merits a favorable exercise of the Attorney General's discretion. The alien may also be eligible for other immigration relief or protection if this waiver is granted. This waiver provision will provide discretion to deal with compelling cases; for example, in the case of a child who was unlawfully recruited for use in armed conflict and forced to commit a heinous act, the Attorney General would have the authority to waive the provision in her discretion so that the child could be admitted for family reunification purposes.
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C. New Subparagraph 212(a)(11)(C)

    Under this subparagraph (and the parallel new subparagraph 237 (a)(7)(A)), an alien is inadmissible if the Secretary of State determines that the alien's presence would be incompatible with United States policy regarding the promotion of international human rights or humanitarian law. This authority is consistent with the Secretary's overall authority to conduct foreign relations and U.S. policy to monitor and promote the international observance of human rights and humanitarian law. The authority will compliment the Secretary's existing authority to deny visas on foreign policy grounds contained in Section 212(a)(3)(C) of the INA, which could also be used in appropriate cases to deny admission to or to remove aliens who have engaged in abuses, if the standard of that provision were met (- i.e., if the alien's entry or presence would have potentially serious adverse foreign policy consequence for the United States or compromise a compelling United States foreign policy interest). The proposed new subparagraph adopts a different standard more directly reflective of U.S. interest in the promotion of human rights and humanitarian law. Without this subparagraph, the United States may still find itself used as a refuge by aliens whose presence in the United States is offensive in light of our fundamental values. If the Secretary determines that an alien's presence is incompatible with United States policy regarding the promotion of international human rights or humanitarian law, the determination itself will make the alien inadmissible. If the alien is in the United States, the alien will be subject to removal and, as discussed further below, will be statutorily ineligible for all immigration relief. A determination would not preclude protections that implement U.S. obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the 1967 Protocol Relating to the Status of Refugees.

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D. Available Waivers

    All aliens covered by the new subparagraphs and applying for admission as nonimmigrants will be eligible for the nonimmigrant waiver provided for in paragraph 212(d)(3) of the INA. Paragraph 212(d)(3) provides broad discretion to the Attorney General (upon a recommendation of the Secretary of State or a consular officer, in the case of a visa applicant) to waive all grounds of inadmissibility listed in INA Section 212(a) with respect to nonimmigrants except those subparagraphs of paragraph 212(a)(3) specifically enumerated in paragraph 212(d)(3) as excluded from this broad waiver authority. Paragraph 212(d)(3) is not available to immigrants and has no counterpart with respect to aliens subject to removal from the United States. The new grounds of inadmissibility are not included in the list of non-waivable grounds in paragraph 212(d)(3) and therefore would be waivable pursuant to paragraph 212(d)(3). Extending the Attorney General's broad discretionary authority under paragraph 212(d)(3) to grant waivers of most grounds of inadmissibility to aliens covered by the new subparagraph will allow those grounds to be waived when it may be in the interests of the United States to admit the alien temporarily, and is consistent with how other serious past conduct, such as participation in past terrorist acts, is handled. Currently the genocide ground of inadmissibility cannot be waived. By relocating the genocide ground of inadmissibility to the new subparagraph 212(a)(11)(A), a waiver for genocide will be available for nonimmigrants.

    Nonimmigrants covered by one of the new subparagraphs will also be eligible for a waiver under paragraph 212(d)(1) of the INA if they are applying for admission under subparagraph 101(a)(15)(S) of the INA. This nonimmigrant category is available to those aliens in possession of ''critical reliable information'' (1) concerning a criminal or terrorist organization or enterprise (S–1 visa status) or (2) resulting in a terrorism reward from the Secretary of State (S–2 visa status). Given the Department of Justice's role in enforcing the laws and in safeguarding the national security of the United States, there may be instances in which it is appropriate for the Attorney General to exercise her broad discretionary authority to admit aliens who will provide information concerning a criminal or terrorist organization, enterprise or operation.
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    An alien who has been admitted to the United States as a nonimmigrant under subparagraph 101(a)(15)(S) of the INA will continue to be eligible in the Attorney General's discretion for adjustment to lawful permanent resident status under section 245(j) of the INA, even if covered by one of the proposed new grounds of inadmissibility. In order to adjust status under this subparagraph, however, an alien must meet extremely restrictive conditions, such as the Attorney General determining that alien's information ''substantially contributed'' to the success of the criminal or terrorist investigation or prosecution. In addition, S–2 aliens must show that they actually received an award from the Department of State for their efforts before they can adjust their status. There may be instances in which a grant of adjustment to lawful permanent residence status is appropriate in the interests of the national security, or for law enforcement purposes.

    As explained above, the proposed legislation contains a waiver provision for certain immigrants seeking family reunification whose conduct occurred when they were minors.

Section 3. Grounds of Removal for Serious Human Rights or Humanitarian Law Violators.

    This section provides that aliens who have participated in or been responsible for the enumerated conduct are deportable from the United States. Significantly, this provides a ground for deporting such aliens who have been admitted into or are present in the United States. The same conduct that would constitute a basis of inadmissibility under Section 2 is a ground of deportability under this section.

    In the deportation context, however, the burden would remain on the government to prove by clear and convincing evidence that the alien's conduct brings the alien within a particular ground of deportation.
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    The Attorney General may, in her discretion, waive the application of this ground of deportation for immigrants who only participated in or were responsible for such conduct when under eighteen years of age, if the immigrant has a parent, spouse, son or daughter who is a United States citizen or lawful permanent resident.

    As with aliens seeking admission, the Secretary of State will have authority to make determinations that the presence of a particular alien is incompatible with United States policy regarding the promotion of international human rights or humanitarian law. Such a determination would render the alien deportable.

Section 4. Bar to Refugee Status for Human Rights or Humanitarian Law Violators.

    This section creates a statutory bar to refugee status for aliens who are inadmissible under the proposed paragraph 212(a)(11) (relating to serious human rights or humanitarian law violators). This ground of inadmissibility cannot be waived in order to admit an alien who otherwise qualifies as a refugee under Section 207 of the INA or as the spouse or child of a refugee. An alien who is granted the waiver provided in subparagraphs 212(a)(11)(B) or 237(a)(7)(B) could be eligible for refugee status.

Section 5. Bar to Asylum for Human Rights or Humanitarian Law Violators.

    This section creates a statutory bar to asylum for aliens who are described in subparagraphs 212(a)(11)(A) or (C) or subparagraphs 237(a)(7)(A) or (C) (relating to serious human rights or humanitarian law violators). Since 1980, aliens who have participated in or been responsible for persecution on account of race, religion, nationality, membership in a particular social group or political opinion have been excluded from being considered refugees, and therefore are not eligible for asylum. This amendment prevents aliens who have committed other serious abuses from being eligible for this relief. Under this amendment, it is not necessary that the alien be charged as and found to be inadmissible or removable under subparagraphs 212(a)(11)(A) or (C) or 237(a)(7)(A) or (C): it is sufficient that the alien fall within one of the classes of persons described in these sections. An alien who is granted the waiver provided in subparagraphs 212(a)(11)(B) or 237(a)(7)(B) could be eligible for asylum. As with other bars to asylum, if the evidence indicates that a statutory bar may apply the burden of proof would shift to the alien to prove by a preponderance of the evidence that the bar does not apply.
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    Further, this section clarifies that dependents of qualified asylees are subject to the same bars to asylum to which the principal applicant is subject, except for the bar relating to firm resettlement in another country. Dependent applicants who would be barred from derivative asylum status include those who: have participated in persecution; have been convicted of a particularly serious crime; have committed a serious nonpolitical crime; are a danger to the United States; or are inadmissible or removable because of either terrorist activity or conduct covered by the proposed grounds in paragraphs 212(a)(11) and 237(a)(7). The bar to asylum for a principal applicant who has been firmly resettled in another country is not extended to dependents, however, because such an extension would be inconsistent with our policy of promoting family unity.

    Finally, this section allows the Attorney General to terminate a grant of asylum if one of the bars to asylum applies no matter when that grant occurred. Existing gaps in the INA may have allowed human rights or humanitarian law violators to receive asylum in the past. This provision will allow retroactive termination of such grants and ensure that aliens who have participated in or been responsible for human rights or humanitarian law violations do not find refuge under the asylum laws of the United States.

Section 6. Bar to Adjustment of Status of Refugees for Serious Human Rights or Humanitarian Law Violators.

    This amendment states that none of the grounds of inadmissibility relating to serious human rights or humanitarian law violators can be waived in order to allow aliens admitted as refugees or granted asylum to adjust status to lawful permanent residence. The other amendments in Sections 4 and 5 have made these aliens not eligible for the underlying relief of refugee status or asylum. This is designed to cover aliens who have been previously admitted as refugees or asylees and are now eligible to adjust. If the Attorney General grants the waiver in subparagraphs 212(a)(11)(B) or 237(a)(7)(B) applies, the refugee or asylee would be eligible to adjust status.
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Section 7. Bar to Withholding for Serious Human Rights or Humanitarian Law Violators.

    Withholding of removal pursuant to INA paragraph 241(b)(3) is the procedure by which the United States implements its obligations under the Convention and Protocol Relating to the Status of Refugees not to return refugees to a country of persecution (the obligation of nonrefoulement). An alien entitled to withholding of removal may not be returned (i.e. removed) to such a country (although the alien could be removed to a different country). By adding references to the new grounds of inadmissibility and removal in sections 212(a)(11)(A) and 237(a)(7)(A), relating to serious human rights or humanitarian law violators, to paragraph 241(b)(3) of the INA, section 7 will bar such violators from being eligible for withholding of removal. An alien who is granted the waiver provided in subparagraphs 212(a)(11)(B) or 237(a)(7)(B) could qualify for withholding of removal. This will permit the removal from the United States of aliens who have participated in or are responsible for the atrocious conduct covered in these new subparagraphs. This is consistent with existing law, which has barred aliens who have persecuted others on account of race, religion, nationality, membership in a particular social group, or political opinion from withholding of removal since 1980. Note that an alien whose presence in the United States is determined by the Secretary of State to be incompatible with United States policy regarding the promotion of international human rights and humanitarian law under proposed subparagraphs 212(a)(11)(C) or 237(a)(7)(C) would not be statutorily barred from withholding of removal based on that determination alone, but could be barred from withholding if one of the other bars applies.

    The proposed bar to withholding for serious human rights or humanitarian law violators is consistent with the obligations of the United States under the Protocol to the Convention Relating to the Status of Refugees. Article 1(F) of the Convention Relating to the Status of Refugees, by which the United States is bound as a party to the Protocol, excludes from eligibility for refugee status and protection under the Convention certain classes of individuals including those who have committed a crime against peace, a war crime, a crime against humanity, or a serious non-political crime, and those who are guilty of acts contrary to the purposes and principles of the United Nations. Such persons are not entitled to protection from return to a country in which they would be persecuted (refoulement). As noted, the withholding of removal provision in section 241 (b)(3) of the INA implements this international obligation. The Administration is satisfied that the denial of withholding to aliens covered by the proposed subparagraphs 212(a)(11)(A) and 237(a)(7)(A) is consistent with U.S. obligations under the Protocol because aliens who have committed conduct described in the proposed sections are aliens who would fall within the classes of persons excluded from the protection of the Convention. Subparagraphs 212(a)(11)(C) and 237(a)(7)(C) are not included as statutory bars to withholding because the determinations made pursuant to them will be of a policy nature and can be made without establishing that the alien engaged in conduct that would exclude them from the protection of the Convention and Protocol Relating to the Status of Refugees.
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Section 8. Bar to Good Moral Character for Serious Human Rights and Humanitarian Law Violators.

    This section amends the current definition of ''good moral character'' contained in the INA, providing that any alien who is described in any of the grounds of inadmissibility or deportability relating to serious human rights or humanitarian law violations cannot establish good moral character unless the alien is granted the waiver provided in subparagraphs 212(a)(11)(B) or 237(a)(7)(B). Good moral character is a prerequisite for certain forms of immigration relief, including naturalization, cancellation of removal for nonpermanent residents, and voluntary departure at the conclusion of removal proceedings. Accordingly, this amendment prevents aliens covered by the proposed provisions from becoming United States citizens or benefiting from cancellation of removal or voluntary departure. Absent such an amendment there is no statutory bar to naturalization for aliens covered by the proposed new subparagraphs.

Section 9. Bar to Cancellation of Removal for Serious Human Rights or Humanitarian Law Violators.

    This section would establish a statutory bar to cancellation of removal for lawful permanent residents who are described in any of the inadmissibility or removability provisions relating to serious human rights or humanitarian law violations. An alien who is granted the waiver provided in subparagraphs 212(a)(11)(B) or 237(a)(7)(B) could be eligible for cancellation of removal.

Section 10. Bar to Special Agricultural Workers for Serious Human Rights or Humanitarian Law Violators.

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    This section prevents a waiver of any of the inadmissibility grounds relating to serious human rights and humanitarian law violators for aliens adjusting their status to that of lawful permanent resident as a special agricultural worker. An alien who is granted the waiver provided in subparagraphs 212(a)(11)(B) or 237(a)(7)(B) would be eligible to adjust status as a special agricultural worker.

Section 11. Bar to Adjustment of Certain Entrants Before January 1, 1982, to that of Person Admitted for Lawful Residence for Serious Human Rights and Humanitarian Law Violators.

    This section prevents a waiver of any of the inadmissibility grounds relating to serious human rights or humanitarian law violators for aliens adjusting their status to that of lawful permanent resident as legalization applicants. An alien who is granted the waiver provided in subparagraphs 212(a)(11)(B) or 237(a)(7)(B) would be eligible to adjust status as a legalization applicant.

Section 12. Bar to Adjustment of Status with Respect to Certain Special Immigrants.

    This section prevents a waiver of any of the inadmissibility grounds relating to human rights or humanitarian law violators for certain special immigrants adjusting to lawful permanent resident status under subparagraph 245(h)(2)(B) of the INA. An alien who is granted a waiver provided in subparagraphs 212(a)(11)(B) or 237(a)(7)(B) would be eligible to adjust status as a special immigrant.

Section 13. Criminal Penalties for Reentry by Serious Human Rights and Humanitarian Law Violators.

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    This section allows criminal penalties of up to ten years in prison to apply to aliens who have been ordered removed pursuant to any of the new provisions relating to serious human rights or humanitarian law violations and have reentered the United States without the authorization of the Attorney General.

Section 14. Aiding or Assisting Certain Aliens to Enter the United States.

    This section provides for criminal penalties of up to ten years in prison for aliens who knowingly help an alien inadmissible under paragraph 212(a)(11) to enter the United States.

Section 15. Definitions.

    (I) Homicide.

Homicide is defined as the unlawful and intentional killing of a person and includes extradjudicial killings. A killing is ''unlawful'' for the purposes of this definition if it is unlawful under the laws of the place where it is committed or if it would have been unlawful under the laws of the United States or any State had it been committed in the United States. The term ''homicide'' is used rather than ''murder'' because the necessary mental state is described in the preambulatory language of the new subparagraphs 212(a)(11)(A) and 237(a)(7)(A) and to make clear that a killing of another human for the purposes described in the preambulatory language is covered.

    (II) Disappearance.
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Disappearance is defined as the arrest, detention, or abduction of a person carried out on behalf of, or with the authorization, support or acquiescence of a government or political organization that has failed to disclose the fate or whereabouts of the missing person.

    The term ''disappearance'' is an adaptation of the original term ''desaparecido'' (disappeared) used in Latin America to describe situations in which a governmental or paramilitary organization abducted, arrested, or seized an individual and then provided no information about the individual's whereabouts. Depending on the facts, a disappearance may also constitute a kidnapping, prolonged, arbitrary detention and/or homicide. The definition is designed to have the ''disappearance'' ground of inadmissibility and deportation apply as long as no information is provided, but assumes that a different ground will apply if information is eventually provided. Thus, when information about the fate or whereabouts of the missing person becomes available, even if the revelation takes place years later, the conduct will no longer be a ''disappearance.'' In many cases, however, persons involved in the disappearance will become inadmissible or removable under another ground, such as ''homicide.''

    (III) Genocide.

This clause amends the language relating to genocide and moves it from section 212(a)(3)(E)(ii) to section 212(a)(11)(A)(iii). This ground of inadmissibility relating to genocide was previously found in the same subparagraph as the ground relating to participants in Nazi persecution. By relocating the genocide provision, most of the provisions relating to serious human rights or humanitarian law violations are consolidated in one section of the INA. This allows other provisions referencing such conduct to refer to one section of the INA.
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    This clause relies on the definition of genocide in section 1091(a) of title 18 of the United States Code, but is not limited to conduct committed in the United States or by a United States national. Previously, the ground of inadmissibility relating to genocide referred to the definition in the Convention on the Prevention and Punishment of the Crime of Genocide. The definition in the criminal code was adopted to implement our obligations under the Convention. A person has committed genocide for purposes of the proposed immigration law definition if that person ''whether in time of peace or in time of war, . . . with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial or religious group as such: (1) kills members of that group; (2) causes serious bodily injury to members of that group; (3) causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques; (4) subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part; (5) imposes measures intended to prevent births within the group; or (6) transfers by force children of the group to another group.'' See 18 U.S.C. 1091(a). This definition clearly includes genocide by public or private individuals in times of peace or war.

    The existing genocide provision renders inadmissible those who engaged in genocide. Relocating the genocide provision broadens the reach of the provision to cover any alien who has committed, ordered, incited, assisted, or otherwise knowingly participated in or been responsible for genocide. In addition to being consistent with the other grounds of inadmissibility relating to serious human rights or humanitarian law violations, this broader scope will ensure that the genocide provision addresses a more appropriate range of levels of complicity. Article III of the Convention punishes genocide, the conspiracy to commit genocide, direct and public incitement to commit genocide, attempts to commit genocide, and complicity in genocide. The criminal code also prohibits attempts and conspiracies to commit genocide. The INA, as amended, would deny immigration benefits to such persons.
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    (IV) Rape.

Rape is defined as the invasion of the body of a person by conduct resulting in penetration of any part of the body of the victim or perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or other part of the body, by force, or by threat of force or coercion (such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment), or when the person invaded was incapable of giving genuine consent.

    (V)Torture.

The term ''torture'' has the same meaning as in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, subject to the understandings, declarations and reservations adopted by the Senate when it approved United States ratification of the Convention.

    This clause's incorporation of the Convention's definition of torture into the grounds of inadmissibility is consistent with existing immigration law. Statutory and regulatory provisions to implement Article 3 of the Convention, which prohibits the removal of any person to a country where he or she would be tortured, also explicitly incorporate the Convention's definition of torture, subject to the understandings, declarations or reservations adopted by the Senate when it approved United States ratification of the Convention. Section 2242(b) of the Foreign Affairs Reform and Restructuring Act of 1998 (Pub. L. 105–277, Division G, Oct. 21, 1998); 8 CFR 208.18(a). By employing the same definition in this ground of inadmissibility, this clause maintains a uniform approach in the immigration law to issues relating to torture, and is consistent with the goals espoused by the United States when it ratified the Convention Against Torture.
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    (VI) Kidnapping.

Kidnapping is defined as the unlawful seizure, confinement, decoy, abduction, or carrying away and holding for ransom or reward or otherwise of a person. This definition is similar to the federal definition of ''kidnapping'' contained in section 1201(a) of title 18 of the United States Code. The language contemplates the ''holding for ransom or reward or otherwise.'' The term ''otherwise'' would include, but is not limited to, holding to induce some sort of action or statement from another. For purposes of this definition, an act is ''unlawful'' if it is unlawful under the laws of the place where it is committed or if it would have been unlawful under the laws of the United States or any State, had it been committed in the United States.

    (VII) Mutilation.

Mutilation is defined as any nonconsensual act (other than one pursuant to lawful judicial sanctions) resulting in the permanent disfiguring or the permanent disabling of a person or removing of an organ or appendage from a person, where such action causes death or seriously endangers the physical or mental health of that person and is not justified by his or her medical, dental, or hospital treatment. The exception for ''lawful judicial sanctions'' excludes from the definition of ''mutilation'' judicially imposed sanctions that are lawful under the domestic law of the state where they occur, if (and only if) those actions are also consistent with international law. The definition of mutilation is not intended to cover permanent disfigurement inflicted in the course of armed combat conducted in accordance with humanitarian law principles.

    (VIII) Prolonged, arbitrary detention.
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Prolonged, arbitrary detention is defined as the protracted and arbitrary deprivation of physical liberty. No specific time limit is adopted for the detention to be considered ''prolonged.''

    (IX) Enslavement.

Enslavement is defined as the exercise of any and all powers attaching to a claimed right of ownership over a person, such as purchasing, selling, lending or bartering a person, or imposing on a person a similar deprivation of liberty. The term does not include lawful confinement pursuant to due process of law. It is intended that indentured labor be covered by the term ''imposing on a person similar deprivation of liberty.''

    (X) Forced Pregnancy.

Forced pregnancy is defined as the confinement of a woman who has been forcibly made pregnant, with the intention to force her to give birth in order to affect the ethnic or racial composition of the population.

    (XI) Forced Sterilization.

The term ''forced sterilization'' means the nonconsensual deprivation of biological reproductive capacity that is not justified by medical or hospital treatment of the person.

    (XII) Recruitment for use in armed conflict of persons under the age of 15.
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The legislation makes the recruitment of persons under age fifteen for use in armed conflict a basis for inadmissibility, deportability, and denial of other immigration benefits. The cut off of age 15 reflects the fact that the proposed bill, when enacted, will apply retroactively to any conduct occurring before enactment. The Administration fully supports the recently concluded Optional Protocol to the Convention on the Rights of the Child on Involvement of Children in Armed Conflict, which would set higher minimum ages for recruitment in the military, but that standard is not yet in force internationally and its use in retroactive immigration legislation would be inappropriate.

Section 16. Effective Date.

    This section clearly states that these provisions apply to acts committed before, on, or after the date this legislation is enacted. This specific language clarifies that these provisions are to apply to all cases after enactment, even where the acts in question occurred or where adjudication procedures within the Immigration and Naturalization Service or the Executive Office of Immigration Review were initiated prior to the time of enactment.

    Mr. SMITH. Mr. Rooney, let me go back to a couple of your comments and just make sure that we understand the statistics that you have mentioned. As I understand it, about 20,000 torture claims have been filed since March 1999, is that correct?

    Mr. ROONEY. Yes, Mr. Chairman. Let me make sure I have that same chart. Claims filed, yes.

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    Mr. SMITH. About 20,000 have been filed and I think about 12,000 have been decided?

    Mr. ROONEY. That is correct.

    Mr. SMITH. And so you have a backlog of about 8,000 as things stand?

    Mr. ROONEY. Well, the backlog would not be quite at that level, Mr. Chairman. Our data went through July 31 and we held off on even reporting on those that had——

    Mr. SMITH. Several thousand cases to work through, is that right?

    Mr. ROONEY. That is correct.

    Mr. SMITH. And part of the problem, as I understand it, is that aliens who have already had their cases decided and they have already received their final orders of deportation then decide that they want to file a motion to reopen their claim, arguing torture relief, and yet a lot of these individuals, of course, who have done so, the appearance is that they are just trying to buy time or stay in the country. They could have filed before. Do you agree that that is a problem?

    Mr. ROONEY. They all had until June 21 of last year to file those claims, and so we have experienced that. We have only had about 124 grants of just the motion to reopen, so——
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    Mr. SMITH. Right.

    Mr. ROONEY. The impact from the workload perspective has been extremely minimal.

    Mr. SMITH. Let me ask you, Mr. Rooney, and also Mr. Cooper, we know that the Center for Justice and Accountability have suggested that as many as 7,000 human rights abusers are living in the country. None of us know the exact number, but do you agree that it could be in the thousands, Mr. Rooney and then Mr. Cooper?

    Mr. ROONEY. I really would not be able to make a guess on it.

    Mr. COOPER. That probably is something more that we would have a view on, although I would have to say candidly that I do not think anybody knows the precise number and we do not have any basis for knowing whether it is in the thousands or the hundreds. I think we would agree that it is a problem, even if the number is small, and we have tried to go through a series of administrative reforms to improve our ability to deal with this caseload aside from the legislative reforms.

    I would like to note, though, that we have been working with the Center for Justice and Accountability on these issues for quite some time and they at one point presented us with a list of cases that they thought merited some attention and that list was of about 60 cases.

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    Mr. SMITH. As you just said, whether it is a small or large number, whether it is a few hundred or a few thousand, it is still a problem that we are both trying to address.

    Mr. COOPER. Yes, sir.

    Mr. SMITH. You mentioned in your testimony a minute ago, Mr. Cooper, that there were other categories besides torturers that you wanted to see included. What other categories were you referring to?

    Mr. COOPER. Well, going back to Mr. Castello's testimony in February of this year, we talked about torturers, persecutors, war criminals, people who had committed crimes against humanity, and so forth.

    Mr. SMITH. We have all that in the bill, as you know.

    Mr. COOPER. Right.

    Mr. SMITH. All those categories.

    Mr. COOPER. And that was behind our view in February that the previous legislation that was just limited to torturers was too narrow. But in evaluating how to expand beyond just torturers over the months between February and now, we came to the conclusion that by just categorizing in the way that we had previously thought was the best way to go about it would not be as effective where the rubber meets the road for the consular officers, for the immigration officers who have to make these decisions right there, and that is what is behind our evolved thoughts.
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    Mr. SMITH. Mr. Cooper, as you pointed out, we are all going in the same direction and so we are open to your suggestions and perhaps we can talk about those.

    This last point is unrelated to that one, but it is a point that nevertheless needs to be made, and that is, it is correct, is it not, that once an alien is granted a motion to reopen for a torture claim, he can then apply for a green card before the immigration judge if he obtained a labor visa and that enables him to stay in the country and continue to work and live here, is that correct?

    Mr. COOPER. Well, actually, the regulations permit motions to reopen under the circumstances you earlier asked Mr. Rooney about, under fairly particular circumstances, and they were set up to permit Convention Against Torture relief only. The reason why we felt it necessary to take on this additional caseload—I mean, clearly, we were subjecting ourselves and the courts to an additional caseload with this category of persons.

    Mr. SMITH. Right. Since my time is almost up, let me interrupt you. I am reading from a memo from you on the subject of motions to reopen for consideration of Convention Against Torture claims. The grant of a motion to reopen for consideration of a claim under the Torture Convention has the same effect as a grant of any other motion to reopen and should be treated as such in keeping with the general principles governing reopening. This means that the case is reopened for whatever purpose the Board of Immigration Appeals or the judge determines is appropriate. That is my only point, and that is under the title of effective reopening to consider a claim under the Torture Convention in your memo.

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    We do not need to get hung up on that, and unfortunately, we have a vote, but before we leave for the vote, I would like to recognize first the gentleman from Indiana for any questions he may have.

    Mr. PEASE. Thank you, Mr. Chairman.

    Mr. Cooper, I appreciate the fact that you condensed your remarks. It was obvious you were trying to get everything done in the 5 minutes. But I would like for you to expand a little bit on one of the points you made, which was your assertion that there is a conflict between section 12 of the bill as drafted and article 3 of the Convention, and if you could explain to us how and why you believe that to be the case.

    Mr. COOPER. Yes, sir. We explored this question in great depth when the Convention became effective and we were trying to carry out its obligations before there was legislation, and then once it became our command under the legislation to implement regulations and to deny protection under article 3 to the extent possible to people who would be barred from protection under the Refugee Convention. And we reached the conclusion that I am quite confident as a legal matter that the Convention is simply not susceptible of application by applying these criminal or other bad act bars that are included in the Refugee Convention.

    In the first place, if you just look at the text of article 3, which in almost every respect is identical to the analogous provision, the nonrefoulement provision in the Refugee Provision, and then look at the limitations that exist in both Conventions, the Refugee Convention has an article 1(f), a clear set of bad acts, if you will, bars that the drafters and signatories of the Convention Against Torture excluded, and so we reached the conclusion that you could not lawfully import those bars into the Torture Convention implementation regime.
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    Now, what we did was we tried to carry out our Congressional instruction to deny protection to the extent possible to those people by, A) setting up what you get if you are one of those people but fall within article 3 to be the bare minimum necessary to meet the Convention obligation, and also to make it undoable as easily as possible where the facts change or where there are reasons to undo it.

    Mr. PEASE. I appreciate that. That is very helpful. You also talked about your initial observation that you were going to include three categories: war crimes, crimes against humanity, and persecution, and then changed your thinking. As I understand it, and I have not seen your proposal yet so this is a reaction to what you just said, that your proposal still includes war crimes and crimes against humanity but persecution was perhaps—I do not want to put words in your mouth—too nebulous a term and you went with more specific terms in that larger category. Am I understanding you correctly, where you talked about forced pregnancy, forced servitude in armed services——

    Mr. COOPER. I apologize for not having gotten the proposal prepared and here earlier. It is attached to my testimony. But essentially, what we tried to do was get away from an expansion by category—that is, war crimes, persecution, so forth—to expanding by listing the actual acts that would make a person, in our view, fall under this category, homicide, for example.

    We are not trying to get at common crimes with this legislation, and so we require that homicide or the other acts be committed—have been committed for a political or religious or discriminatory purpose, and that seemed a better way, an easier way for consular officials, for example, who have to act much more quickly than an asylum adjudicator or an immigration judge or an immigration official at the port of entry to apply those kinds of standards, trying to reach the same goal but through a more practical, easy route.
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    Mr. PEASE. I understand and appreciate that. Even though I know it is a tremendously complex area, I assume that you did not take that approach in the first two categories because there is at least some established case law, international, that helps us define and understand those terms so it was not necessary, and there is some case law and practice in some of these other categories that you have now listed as specific acts——

    Mr. COOPER. Right.

    Mr. PEASE [continuing]. Under the broader umbrella of persecution.

    Mr. COOPER. Forgive me if I am not being clear enough. Our proposal does not include war crimes or crimes against humanity or persecutors or any of the categories we previously had described. Our effort is to have a substitute for all of the things that would have been adjudicated under those standards——

    Mr. PEASE. Okay.

    Mr. COOPER [continuing]. And not, for example, to narrow persecution, but actually, we think our view would more easily get at persecutors, for example, because of the way the motivations would work. Persecution, you have to show that the perpetrator acted because of the victim's protected characteristic. Under our proposal, that would be included, but it would also include where the perpetrator is acting for his or her own political or religious motivations independent of the victim's characteristics.
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    Mr. PEASE. Thank you.

    Mr. SMITH. Thank you, Mr. Pease.

    The gentlewoman from Texas, the ranking member is recognized for her questions, and without her asking for it, her opening statement will be made a part of the record, as mine was. The gentlewoman is recognized.

    Ms. JACKSON LEE. Thank you very much.

    [The prepared statement of Ms. Jackson Lee follows:]

PREPARED STATEMENT OF HON. SHEILA JACKSON LEE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS

    Thank-you Mr. Chairman. I recognize that the crimes listed in H.R. 5285, the ''Serious Human Rights Abusers Accountability Act'' are internationally recognize as some of the most egregious known to man. I do believe that we should also look to expand this list. My experiences in Congress lead me to the conclusion that crimes against individuals due to their gender and sexual orientation should be explicitly singled out.

    It is important that the Congress generally and this subcommittee specifically, understand that the Torture Convention is a fundamental pillar of our human rights and national interest policy. The Senate carefully deliberated over the Convention prior to ratification and we should not attempt to chip away at any of its provisions.
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    While the goal of this bill: to take immigration benefits away from tortures is sound, I have real concerns that the due process protections needed to prevent innocent individuals from being deported are not found in this bill.

    I think that it is bad public policy for this body to remove judicial review as this bill would do. The benefits of judicial review have been clear and provisions eliminating review do not serve our country well.

    I believe that our Torture Convention obligations require us to prosecute torturers found in our country and am concerned that we may be side stepping our international obligations if we do not build prosecution mechanisms into this bill.

    I look forward to hearing the witnesses give their expertise on the bill, particularly Ms. Massimino from the Lawyers' Committee for Human Rights before I cast my vote at the mark-up on this bill today.

    Thank-you Mr. Chairman.

    Ms. JACKSON LEE. Mr. Cooper, thank you for your patience. Why do you not restate for me the position of the INS on this legislation and the legislation that the INS is proposing.

    Mr. COOPER. I think our position can be summarized easily in, one, we would oppose with respect to the Torture Convention adding criminal bars to eligibility. We do not think that would be supported by the Convention itself.
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    And two, we agree entirely with the purposes behind the proposed law on human rights abuses and, in fact, had described a very similar thought process when we first testified about this but now think that those goals could be better accomplished through a different route. In other words, rather than trying to categorize the kinds of conduct we are getting at, we would actually propose to list the acts that a person would have committed to fall within this category and then require that those acts have been committed for a political, religious, or discriminatory purpose, to separate them from simple, common crimes.

    Ms. JACKSON LEE. So as you list them, then the determining factor or the arbitrator of their acts would be structured how under the INS proposal?

    Mr. COOPER. These would be put right into the grounds of inadmissibility and there would be a parallel set of grounds for removability, and then these also would be set up as bars to the range of remedies under the Immigration Act—asylum, withholding, cancellation, adjustment, naturalization, even. And the inquiry—it also would apply to admission in the first place, consular officers abroad deciding whether to give someone a visa or an immigration officer at the port of entry deciding whether to admit someone who has gotten a visa.

    And what they would be asking is whether or not a person committed one of these 12 acts and whether the act seems to have been committed for one of the listed purposes, and the standard actually would be a lower standard than that contained in the proposal that is at issue today. We would propose that there be a reasonable grounds for believing standard. In other words, you would have to have a reasonable grounds for believing that the person committed, say, homicide for, say, a religious purpose. That is essentially how it would work.
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    We also have an element that is basically designed to get at the notion that certain persons who are in a position of authority and who knew or should have known that acts being undertaken under their authority were going on or were likely to go on but did not stop them would also be held accountable for those acts and would be considered to be violators.

    Ms. JACKSON LEE. What would be—I would appreciate your fact finding vehicle for determining the listing, allegations randomly, documented allegations, someone coming in and saying it, and would you prefer to have a separate adjudication for the claims under the Torture Convention?

    Mr. COOPER. You mean the fact finding with respect to the human rights violators?

    Ms. JACKSON LEE. Right. Can I walk up as a person who is entering the consular office and make allegations? How would it proceed under your particular——

    Mr. COOPER. I think we would envision the facts coming forward in any number of ways. I mean, it happens in our asylum adjudication process, for example, that people come in and testify to facts that amount to persecution by them. So sometimes it might be from the person's own testimony. Sometimes it might be from information being brought to us from outside. You have read probably newspaper accounts of people running into their alleged torturers here in the U.S. It might be something as random as that.

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    It might be something more systematic, like we might have working relations—we try to keep good working relationships with groups outside the government and if someone came to us and presented a list and facts of cases that they thought were important for our consideration, we would take those. In that situation, you always have to have an element of caution.

    Ms. JACKSON LEE. So it would be expansive with limits.

    Mr. COOPER. Yes.

    Ms. JACKSON LEE. With certain limits. And what about the separate adjudication proceeding?

    Mr. COOPER. With the Torture Convention?

    Ms. JACKSON LEE. Yes.

    Mr. COOPER. We made a very careful decision not to have a separate proceeding on the Torture Convention in most categories of cases when we were putting the regulation together, and it seems counterintuitive but the conclusion we reached was that we actually could be more efficient by making this something that people could apply for in the context of immigration court process, the idea being that the facts were going to be about the same as asylum and withholding cases.

    Just about all people who can apply for relief under the Torture Convention can also apply for those other remedies, although there are, of course, exceptions, and that it made more sense administratively to have that decision just rolled into the same process as the asylum determination and not have to go back to cases after you had gotten an order of removal to have a separate Torture Convention determination. It seemed to us the process would work more efficiently that way, even though, as I said, it is somewhat counterintuitive. But I think that the statistics that Mr. Rooney has presented suggest that at least in the early stages, that prediction has been borne out, but it is something that we obviously have to be very carefully attentive to and will continue to do so as the process moves on.
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    Ms. JACKSON LEE. Let me conclude by simply saying, as you well know, you have been in meetings before where we have discussed the overall backlog in many instances and some of the proceedings that the INS has jurisdiction over.

    Mr. COOPER. Yes, ma'am.

    Ms. JACKSON LEE. I would like for you to give me in writing, to express my general concern about moving these cases along, how you would complement the need for, I think, a reasonable response in the adjudication of these cases to your other responsibilities and, of course, suggestions that there is an almost deadlock in many times processing citizenships and deportation issues, et cetera, like that, how would this fit into the scheme of the INS structure that these cases would move expeditiously or at least move within timely—provide a timely response.

    Mr. COOPER. Yes, ma'am.

    Ms. JACKSON LEE. I will not ask you for that unless you have a one-sentence answer.

    Mr. COOPER. I would prefer, actually, to give you a more considered response in writing, but just so I understand, you mean with respect to the human rights abuser cases?

    Ms. JACKSON LEE. Human rights abusers. As a backdrop, I think, we have had discussions about INS backlog in general.
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    Mr. COOPER. Right.

    Ms. JACKSON LEE. And I just want to know how we would be proceeding with those cases.

    Mr. COOPER. The one-sentence answer is, I do not think that we would—I do not see why we would alter the progress in trying to keep up with those backlogs by doing this because this would just be saying that this is a category of cases that we want improved legal authorities for and——

    Mr. SMITH. Mr. Cooper, I am going to need to interrupt you. We only have 2 minutes to get to a vote.

    Mr. COOPER. We will supply an answer for the record.

    Mr. SMITH. I thank the witnesses for the comments. We will take anything in writing you want to give to us.

    We will stand in recess for about 15 minutes and then resume with the third panel.

    [Recess.]

    Mr. SMITH. The Subcommittee on Immigration and Claims will reconvene and we welcome our witnesses on the third panel. I will introduce them. Ms. Genevieve Augustin, former INS trial attorney; Mr. Dan Stein, executive director of the Federation for American Immigration Reform; and Ms. Elisa C. Massimino, director, Washington Office, Lawyers Committee for Human Rights.
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    Thank you all for being here, and Ms. Augustin, we will begin with you.

STATEMENT OF GENEVIEVE AUGUSTIN, FORMER INS TRIAL ATTORNEY

    Ms. AUGUSTIN. Thank you. Good morning, Mr. Chairman and members of the subcommittee. My name is Genevieve Augustin and I was a trial attorney with the INS for just under 5 years. I would like to say it was an honor and a privilege to serve the U.S. Government in that capacity and I thank you so very much for the opportunity to share my experiences with you today. First, I will address the chairman's bill and then I will discuss some issues of concern with the Torture Convention.

    Mr. Chairman, the bill that you have introduced on human rights abusers was urgently needed. While I was at the INS, we became aware of persons who were residing legally in this country who had committed atrocities in their home countries. I have to say that it was not only frightening for me as a citizen, but it was shocking and it was embarrassing that the United States could serve as a haven for these types of persons. I believe that your bill is truly a service to the people of the United States.

    Although I decided to end my employment with the INS, my concern for the administration of the immigration laws will probably never end, and that is why I would like to share with you some of the concerns that I have about the Torture Convention.

    First, the persons who are primarily in need of such relief are the very worst class of aliens that exists and those are persons who are ineligible for all other forms of relief. I am aware of cases where serious sex offenders are walking the streets right now because of the Torture Convention. Given the class of recipients, I think it is very important that we litigate these cases correctly and we not allow the problems that have been rampant in the asylum proceedings to trickle into the torture proceedings, and by this, I am mainly focusing on fraud.
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    Fraud is a huge problem in asylum. I am comfortable with standing before this committee and saying that the majority of the asylum applications that I was involved in involved some type of fraud, and this is also going to trickle into the torture applications because it is the same application and they are so similar in nature. So what we need to do is utilize all the resources we have by first recognizing the problem and then trying to address the problem.

    The other concern that I have is about the definition of torture. A clearer definition is definitely needed. The adjudicators need a definition that can help them to make their decisions become more in line with what we intended when we signed the Torture Convention and implemented it. The standards that are being set are too low.

    For example, in one case, an alien who claimed he had been discriminated in his country and who had been beaten by a gang, he claimed that the police had laughed at his plight and he was granted Torture Convention protection because the adjudicator found that he had suffered mental torture. I do not think that that is the type of incident, although as unfortunate as it may sound, I do not think that that is the type of incident that we intended to protect when we signed the Torture Convention.

    Third, we need to continue to prevent the opportunities for delays that the Torture Convention provides to persons, and by this I am specifically referring to the motions to reopen. Since the alien now who has their case reopened may apply for any form of relief, they are starting their proceedings all over again and they are getting a second bite at the apple. It is not a temporary problem because in the regulations, there are provisions that an alien who fears torture can have their case reopened at any time upon changed circumstances in their country. So because that regulation exists, the problem is definitely not going to remain a temporary one and the opportunity for delay and abuse is still present.
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    Finally, Mr. Chairman, I think that we need to explore other methods of handling these cases. There are other options out there available to us. For example, the option of finding third countries, that is something that we should never not do in the case of a serious human rights abuser or an alien with serious criminal convictions. That is something that is rarely done.

    Something else that we should do is we should not just put these cases down when we are done with them. We need to have some sort of mechanism where they are reviewed periodically so we can make sure that we are still protecting people that need the protection and we are not allowing this class of alien to remain in the United States beyond what is needed, beyond our obligation.

    Another thing I would like to see is the State Department have a bigger role in these because there is no other agency in a better position to make a determination as to whether an alien would truly face torture. They have the foreign contacts. They have the embassies. It is our embassies, but they have the contacts at the embassies and they really are intimately familiar with what is going on in these countries. So I think that their role should definitely be broadened. I understand that they are busy, but when a dangerous alien is permitted to remain in the United States, it affects us all.

    The point of my testimony today is I believe that we should do these cases right. We are dealing with people who may pose a threat to our society. The responsibility is a serious one and should be treated as such. Thank you.

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    Mr. SMITH. Thank you, Ms. Augustin.

    [The prepared statement of Ms. Augustin follows:]

PREPARED STATEMENT OF GENEVIEVE AUGUSTIN, FORMER INS TRIAL ATTORNEY

    Chairman Smith, Congresswoman Jackson Lee, and Members of the Subcommittee, my name is Genevieve Augustin, and I am a former Trial Attorney for the Immigration and Naturalization Service (INS). I thank you for inviting me to discuss my experiences as a Trial Attorney, as they relate to the adjudication of cases arising under the United States' obligations pursuant to Article 3 of the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention).

    I am a first generation American. Except for one brother, my entire family was born in Haiti. My family left Haiti in the 1960's, in the midst of political turmoil, repression and persecution under the regime of Jean Claude Duvalier, also known as ''Papa Doc''. My family suffered persecution at the hands of the Papa Doc regime, and fled to the United States after several family members were beaten and jailed. The United States provided a haven for my family from Duvalier's brutal regime, an act that I will always be grateful for.

    My career as an attorney began in 1995, when I joined the INS through the Attorney General's Honors Program. As a Trial Attorney for the INS, I handled hundreds of cases where aliens claimed that they would be persecuted should they be forced to return to their home countries. In 1997, I began to represent the INS in litigation arising in the United States District Courts, a duty that eventually led to my appointment as a Special Assistant United States Attorney. In addition to my litigation duties, I was appointed Investigations Counsel, and worked very closely with INS Special Agents on arrest and detention issues. I also served as a legal advisor to the Examinations Branch, the branch of INS primarily responsible for alien benefits, and to the Detention and Deportation Section, the branch responsible for the actual removal of aliens. In late 1996, I began to handle the criminal alien docket in immigration court almost exclusively. I continued to handle the criminal alien docket until I left the INS in June of this year.
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    Due to my own family's background and experience with persecution, I am very much in favor of laws that protect aliens who truly fear persecution and torture in their home countries. However, while serving as a Trial Attorney with the INS, I must admit that many of the cases I encountered involving aliens who sought protection pursuant to the Torture Convention were disturbing.

    My experience with the criminal alien docket led to my encountering the very worst immigration cases one could imagine. Many of the cases I handled involved aliens who had convictions that disqualified them from most forms of relief from removal. However, the one form of relief that every alien could seek, regardless of the seriousness of their crime, was protection pursuant to the Torture Convention, one of the subjects of the instant hearing.

    As a former INS Trial Attorney and United States Citizen who remains concerned with the administration of the immigration laws, I am grateful for this opportunity to provide testimony of my experiences at the INS, and of the problems I witnessed in the administration of the Torture Convention. I am hopeful that the reality of my experiences can provide a background and perhaps even a starting point for improvement in the administration of the Torture Convention. Hence, I offer the following experiences for your consideration.

PROBLEMS WITH THE TORTURE CONVENTION

1. The Primary Applicants for Torture Convention Protection are Aliens With Serious Criminal Convictions Who Are Ineligible For Other Forms of Relief From Removal

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    In my experience, the primary applicants, and perhaps beneficiaries of Torture Convention Protection were aliens who were the least meritorious of such protection. After the implementation of the Torture Convention, the majority of criminal aliens who were ineligible for any other form of relief from removal would seek protection pursuant thereto. Among the cases I handled were those involving aliens who had committed sexual crimes against minors, violent offenders, and serious drug offenders. The thought of such aliens receiving the opportunity to remain in the United States, at large, and in a position to once again harm our citizens was and remains frightening to me.

    Further exacerbating the situation was the fact that some of these aliens were being granted Torture Protection because of the very crimes that had resulted in their Removal Proceedings. In essence, if the fact-finder determined that the alien would be subject to some physical punishment in his own country, due to a crime committed in the United States, and the punishment in the home country was more extreme than that which the alien would be subject to in the United States, the alien would qualify for Torture Convention Protection. One example is the case of Afghanistan, a country run by the Taliban. The Taliban is in the practice of removing the hands of thieves. Because of this practice, an alien with a serious larceny conviction could receive Torture Convention Protection because the United States would not return someone to a country where their return could result in the amputation of their hand. Obviously, there are more serious examples of this situation, but the disturbing part of this practice is the bizarre irony of the crime resulting in removal proceedings also serving as a ground for protection from removal.

2. Applications for Torture Convention Protection are Plagued by Fraud

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    In my experience, claims pursuant to the Torture Convention suffered from the same credibility problems as asylum applications. Whenever my District had the opportunity to investigate an asylum case and seek out the truth, there was not one case in which I was involved where we did not discover fraud in an application. For example, in every case where we sought assistance from our Embassies abroad, we discovered that the alien's entire claim was fabricated. There were also cases where we suspected that aliens were fraudulently alleging to be natives or citizens of repressive countries, and applied for asylum from those countries. Due to our suspicions, Special Agents visited such persons' homes and were able to confirm, from talking to housemates etc., that our suspicions were true.

    Due to the lack of resources available to INS Trial Attorneys, however, these methods of investigation into the merits of an asylum case are rarely used. The alien presents their case, and the INS is rarely in a position to present rebuttal evidence. The Trial Attorney's case mainly consists of pointing out inconsistencies in documents and testimony, and the presentation of affirmative evidence by the INS is the exception and not the rule. Witnesses on behalf of the INS are a rare occurrence. While the INS has a Forensics Laboratory, which has an impressive record for uncovering fraud, the Laboratory's caseload and backlog have become so severe that many adjudicators are unwilling to wait for these reports. Thus, the main tool for handling these cases is cross-examination, which may not be effective when an alien appears with a well-rehearsed story. Thus, many fraudulent asylum applications are successful.

    Due to the similar nature of the applications, the fraud that is rampant in asylum applications are also prevalent in applications for Torture Convention Protection. This is a very real problem, and I believe that if INS Trial Attorneys countrywide were polled, a substantial majority would agree with my assertion. Very little is done at this time to overcome such an important problem. However, while devoting effort and resources to the prevention of asylum fraud may not be considered necessary by INS Officials, it is imperative that this practice not be extended to Torture Convention Protection involving aliens who are human rights abusers or those with serious criminal convictions. These cases must not be litigated as we have litigated asylum cases. Given the stakes, that is, the possibility of granting protection to an alien who presents a danger to the communities of the United States, it is imperative that the INS take steps to verify an alien's claim. This should include obtaining an individualized assessment on the alien's claim by the State Department, contact with officials at our Embassies abroad, and where applicable, reports on the alien's documentary evidence by the INS Forensics Laboratory. I would like to reiterate that INS Trial Attorneys are not adverse to using such procedures, and many express concern over their lack of ability to litigate cases thoroughly. However, the time and resources necessary to litigate cases properly are often not made available to them. In cases involving issues of this magnitude, a lack of time and resources is simply unacceptable.
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3. A Clear Definition of Torture is Needed

    I believe that there must be clarification on the definition of torture, and a clearer statement of the type of harm that the United States intended to offer protection from in implementing the Torture Convention. Upon my first examination of the Torture Convention regulations, I believed the definition provided therein was clear and sufficient. However, upon participating in cases where Torture Convention Protection was sought, I quickly discovered that the guidance in the regulations was not sufficient. Virtually any type of harm above a mild beating is being considered torture, and understandably and unavoidably so. In this great country, where cruel treatment is not commonplace, it is quite natural for the average person to consider anything above low level mistreatment to be torture. I, myself, am inclined to consider most types of harm as ''torture'', simply because I find almost any type of mistreatment to be shocking.

    Based on my experiences, I must conclude that my repugnance to harm in general is shared by many others participating in the adjudication of applications pursuant to the Torture Convention. This has resulted in the setting of a very low standard for the definition of torture by adjudicators, especially with regard to mental torture. This is a major problem because, I do not believe that the purpose of the Torture Convention was to protect persons from mere harm.

    Furthermore, without a clearer definition of torture, its definition will inevitably vary from Judge to Judge, Circuit to Circuit, and the result will be a system of adjudication that varies depending on the Judge handling the case, and the Circuit in which the alien resides. While some may plausibly argue that the variance in the application of law between Judges and Circuits is a typical occurrence in our judicial system, I believe that as it stands, the lack of clear guidance on what constitutes torture will eventually create impermissible variance in the definition.
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    Perhaps a more serious consequence of the lack of a clear definition of torture is the fact that except for the difference in the standard of proof for establishing eligibility pursuant to the Torture Convention, such protection is becoming an extension of asylum, and in some instances, establishing eligibility for protection pursuant to the Torture Convention may be easier than asylum. This is because the granting of asylum relief is limited to persons who can establish that the fear that they face is on account of race, religion, nationality, membership in a particular social group, or political opinion. In contrast, Torture Convention Protection may be granted for any reason whatsoever. While an adjudicator in an asylum case can examine background materials such as State Department Country Reports to determine whether a country is inclined to and has engaged in persecution on account of one of the protected grounds, to my knowledge, there is nothing to assist the adjudicator with their determinations in cases where the cause for the fear is purely personal in nature. Furthermore, personal claims in general are harder for the INS to verify or refute and may be decided exclusively on the basis of the person's testimony. This, along with the fact that mere harm can amount to torture under the broad standard enunciated in the regulations, makes it easier to establish prima facie eligibility for Torture Convention Protection than asylum.

4. The Motions to Reopen for Torture Convention Protection Have Resulted in the Further Delay of Proceedings

    A recurring problem with immigration proceedings in general is the extraordinary endurance of such proceedings. It is not unusual for a case to take over five years to come to a final resolution. I was personally involved in a case that had commenced in 1983 and had still not been completed at the time of my departure from the INS. Such delays resulted from heavy immigration court dockets, numerous and lengthy levels of review, and the ever present motion to reopen. In cases that are ultimately denied by the Immigration Judge, an alien could depend on appeals that endure for years.
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    The motions to reopen pursuant to the Torture Convention have exacerbated this problem. These motions to reopen have created a situation where aliens who would not normally qualify to have their cases reopened now have an opportunity to do so. The problem with this is that once the case is reopened, the alien is not limited to seeking Torture Convention Protection. The result is the circumvention of the rules limiting motions to reopen, and delays in the proceedings. The alien virtually gets to start the case over, and if denied, the appeal will go to the bottom of the pile at the appellate level where it can expect to sit for many years. While I realize that this may be a temporary problem, I do not believe that there was any justification to allow any alien to use the Torture Convention to circumvent the restrictions on motions to reopen by allowing them to make other applications once their cases are reopened.

5. There Is Currently No Mechanism for the Review of Cases Where Torture Protection Has Been Granted In Order to Determine Whether Such Protection May Be Revoked Due to Changed Circumstances in the Home Country

    The United States' obligations pursuant to the Torture Convention will inevitably result in meritorious and successful cases pursuant thereto. Thus, I recognize that there will be instances where we will be unable to return serious criminal aliens and human rights abusers to their home countries. Furthermore, we may be unable to return such aliens to a third country.

    Fortunately, however, there may come a time when circumstances in the home country change to a point where the alien can be returned thereto without violating our obligations pursuant to the Torture Convention. Similarly, there may come a time when it becomes possible to send the alien to a third country. However, there is currently no mechanism in place to periodically review such cases to evaluate whether aliens who have been granted such protection are still in need thereof.
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    This has long been a problem with regard to grants of withholding of removal. Aliens who are granted such relief are effectively without status. However, they remain in the United States indefinitely. I do not believe that it has ever been the intention of this Congress to allow persons carte blanche to remain in the United States when they cannot fully assimilate therein by becoming permanent residents, and eventually, U.S. Citizens. Nevertheless, this has occurred with aliens who have been granted withholding of removal, and there is no consistent effort to monitor these cases to determine whether withholding is still necessary. We must not allow this practice to continue in the context of persons granted Torture Convention protection.

    I am hopeful that my testimony sheds some insight on the administration of the Torture Convention. While I do not mean to imply, with my testimony, that the administration of the Torture Convention is without its good points, I hope that an awareness of the difficulties will be of assistance in ensuring the optimal administration thereof.

    Mr. SMITH. Mr. Stein?

STATEMENT OF DAN STEIN, EXECUTIVE DIRECTOR, THE FEDERATION FOR AMERICAN IMMIGRATION REFORM

    Mr. STEIN. Mr. Chairman, thank you very much for the opportunity to appear today. My name is Dan Stein. I am Executive Director of FAIR, the Federation for American Immigration Reform. FAIR is a national organization of 70,000 members working to ensure immigration laws serve the national interest and respond to the needs of our people today.
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    In our view, Mr. Chairman, the bill that is being proposed and that is before the committee for consideration is a good bill. It plugs a serious loophole in existing law that permits a serious human rights abuser to gain or maintain permanent residence in the United States under our asylum or Torture Convention policies. A perverse effect of current policy is that a torturer or other human rights abuser may gain or maintain green card status in this country along with the victims of that abuse for whom the refugee or asylum protections of this country are intended.

    Our interest is in trying to protect people who need protections and have a system that works properly and on the basis of what was intended by Congress, which does have a say, certainly the Senate, in treaty matters. We seek a system that is administratively manageable, maintains integrity, and rewards compliance with the law.

    The Convention Against Torture—signed by the United States in 1988 and which became effective in 1999—created the possibility for aliens present in the United States who, prior to their entry, had committed serious human rights abuses to escape justice for their actions. This was probably never intended. It is arguable that CAT was not intended to create a new vehicle for would-be asylum seekers under domestic law to use as an alternative to our Nation's existing asylum and refugee policy.

    The Senate report accompanying the treaty ratification, Senate Report 101–30 in 1990, stated CAT's purpose as a treaty and there is no mention in the treaty of creating a new right of action, such an absolutist right of action for persons unsuccessful in first obtaining asylum in the host nation. Rather, the organic purpose of CAT, in our view, is to create modifications to a nation's criminal law to eliminate torture, as in the case of the United States, and to provide a legal recourse for those who have suffered torture at the hands of state actors. That is certainly the interpretation of the U.N. Committee Against Torture, which has cited the U.S. for numerous treaty violations already in maximum security prisons, electro-shocks, stun belts, restraint chairs, and pepper spray. So clearly, it is something aimed at the penal system of the individual countries.
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    There is no provision in CAT for the exclusion of criminals or other serious human rights violators, and one has to assume the drafters were not intending that it be done in some kind of rough conformance with the domestic immigration policies of a country. The sovereignty of the countries at issue was a large issue in the whole consideration of CAT, but the INS when it came up with regulations without any real opportunity for public comment, and really without any public discussion at all, noted in its draft regulations that several categories would be eligible for the Torture Convention who were not eligible for asylum under U.S. law or withholding of removal.

    Nazi persecution engaged in genocide, persons who persecuted others, persons who have been convicted of particularly serious crimes, those people would be eligible for the Torture Convention relief. Could that really have been what was intended? Did the Senate really plan on doing that when it ratified CAT to create a whole new series of avenues for relief that would waive those normally excludible bases? The General Counsel of INS has got an absolutist interpretation of the law and yet he is offering a proposal which would mirror hate crimes legislation in this country that appears to concede there are possibilities for waiving the absolute language of the Torture Convention.

    We discussed to some extent the question of how we can remedy this. We think you have got a good approach in this legislation, certainly. We also agree that the Torture Convention was not intended to overrule the new aggravated felony bars that were intended in the asylum law and certainly believe Congress should have been consulted more extensively before regulations of this kind were implemented in such an expedited way.

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    We propose some possible practical changes. Over time, though, the number of asylum claims or Torture Convention claims are 12,000 already. It brings to mind the numbers in the Refugee Act of 1980. Some 5,000 were anticipated to be filed per year in 1980 and then it was 10,000 in 1982 that were backlogged. And now, what is it? How many hundred thousand asylum claims are pending? So based on the lamp of experience, which is what we have, there is certainly cause for concern about the open-ended nature of this new avenue for relief. And there are a number of court cases we could talk about, including the recent Ninth Circuit case that held that the extradition orders were subject to court review, so that the State Department's discretion was going to be reviewed in the sensitive area of extradition for international human rights violators.

    We are concerned that the definition of torture is going to be expanded in new and novel ways to include virtually all forms of regressive cultural or domestic practices where it can be alleged there is no modern state compliance with Western norms of civil protection. So we would like to see those matters addressed.

    Mr. Chairman, if I might also introduce into the record, it was raised some months ago regarding my qualifications to appear before the committee, so I would ask—I brought my complete vitae with me, which includes my membership in the bar for some 15 years, my 60-some appearances before Congressional committees where I have been asked to testify, numerous hundreds of popular articles and scholarly articles and television and radio appearances, if I might do that.

    Mr. SMITH. Mr. Stein, thank you for your testimony. Without objection, that will be made a part of the record.
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    [The prepared statement of Mr. Stein follows:]

PREPARED STATEMENT OF DAN STEIN, EXECUTIVE DIRECTOR, THE FEDERATION FOR AMERICAN IMMIGRATION REFORM

INTRODUCTION

    Thank you, Mr. Chairman, for the opportunity to present the views of the Federation for American Immigration Reform (FAIR) on this bill to foreclose refuge in the United States for aliens who are serious human rights abusers. My name is Dan Stein, and I am FAIR's executive director.

    FAIR is a national, non-profit organization of concerned citizens nationwide promoting better immigration controls and an immigration time-out to insure that today's policies serve the current and future best interests of the American people. Since its founding more than twenty years ago, FAIR has insisted on the need to improve America's entry controls; and FAIR has worked hard to support most of the recommendations of the U.S. Commission on Immigration Reform (1995) chaired by the late Barbara Jordan. FAIR does not receive any federal grants, contracts or subcontracts.

    Our interest in the subject of today's hearing relates 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.(see footnote 4)
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    In our view, H.R. 5285 would plug a serious loophole in existing law that permits a serious human rights abuser to gain or maintain permanent residence in the United States under our asylum or torture convention policies. The perverse effect of current policy is that a torturer or other human rights abuser may gain or maintain permanent residence in this country along with the victims of that abuse for whom the refugee or asylum protections in this country are intended. FAIR is also interested in restoring an immigration system to one more consistent with overall congressional intent and the general view of the American people: We seek a system that is administratively manageable, maintains integrity, and rewards compliance with the law to ensure the spirit of the code is respected at all times.

ANALYSIS OF THE NEED FOR LEGISLATION

    The Convention Against Torture (CAT), signed by the United States in 1988 and which became effective for this country March 22, 1999, created the possibility for aliens present in the United States who prior to their entry had committed serious human rights abuses to escape justice for their actions.

    This was probably never intended. It is arguable that CAT was not intended to create a whole new vehicle for would-be asylum seekers to use as an alternative to our nation's existing refugee and asylum law. The Senate Report accompanying treaty ratification (Senate Report 101–30) (1990) stated CAT's purposes as a treaty. There is no mention that the nation was 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 a nation's criminal law to eliminate torture (in our case here in the U.S.) and to provide a legal recourse for those who've suffered torture at the hands of state actors.
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    Evidence for this theory can be found in the fact that the CAT has no provision for exclusion of criminals and other serious human rights abusers from its protection. As now interpreted by INS, 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 the CAT provisions becoming effective, the provisions of INA §241(b)(3) established the ineligibility for ''withholding of removal'' for aggravated felons and other categories of undesirable aliens.

    The INS made these important points when 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.)

    Could this really have been intended? Did the Senate, when it ratified CAT, intend to create a whole new category of immigration relief for those ineligible for asylum or withholding of deportation? Was CAT intended to expand dramatically the relief now available under INA section 243(h)? We seriously doubt it. The Serious Human Rights Abusers Accountability Act of 2000 begins to correct this serious flaw by explicitly defining the term ''serious human rights abuser'' and specifying the grounds of inadmissibility or the basis for denying relief for those in proceedings. With the enactment of this law, serious human rights abusers will be excluded from entry to the United States as a refugee or denied asylum. In addition, any alien who is found to be a serious human rights abuser who is present in the country will become removable notwithstanding the provisions of the convention that, read abstractly, would seem to mandate to the contrary.
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    Mr. Chairman, FAIR agrees that this loophole needs to be closed quickly. Serious human rights abusers (as defined in section 2 of this bill to include aliens who participated in Nazi persecution, torture, genocide, crimes against humanity, or persecuted persons on account of race, religion, nationality, membership in a particular social group or political opinion) should not be able to use the U.S. as a shield from facing the consequences of their actions.

    The issue of who has responsibility and standing to apply the provisions of this law against serious human rights abusers merits close attention. Clearly, the responsibility for excluding serious human rights abusers lies with consular officers abroad and asylum officers at ports of entry. If a serious abuser has gained entry into the United States, whether legally or illegally, the INS, in close cooperation with the Department of State, has the responsibility to take action. But, rather than leaving action to the discretion of the INS, it is important to provide a means for U.S. citizens and legal permanent residents to initiate requests for the INS to take action. In light of the political constraints that appear to influence the INS decision-making process in discretionary cases, it seems wise to also try to provide a mechanism for a U.S. citizen or legal permanent resident to force the hand of the INS to investigate and to definitively decide whether sufficient evidence exists that an alien has committed serious human rights violations abroad to invoke the provisions of this bill.

    Increasingly the criteria for deciding eligibility for asylum and for withholding of removal have become complicated by new decision-making criteria. The trend in expanding the definition of membership in a particular social group and in adding new categories of beneficiaries, as was done by Sec. 601 of IIRAIRA, is putting an unfair and unmanageable burden on the asylum adjudication process. In that regard, the balancing criteria provided in Section 2(B)(ii) of the bill could further burden the adjudication process. We think that the provision is unnecessary inasmuch as the ''extreme duress'' standard in Section 2(B)(i) adequately protects refugees who were coerced against their will into participation in abusive actions against others.
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    On a broader level, Mr. Chairman, changing the evidentiary burden on the claimant from ''clear probability'' to ''clear and convincing'' will only be useful if Immigration Judges view it as a substantial change and apply it with rigor. It may have no practical effect. I will note, at this point, that there are now more than 10,000 cases pending based on claims under the new CAT rules. This presages a rapid increase for the future. 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 now prohibited by 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. Enacting H.R. 5285 would at least slow down the process of overburdening a beleaguered system.

    Mr. Chairman, we welcome this initiative to bring some rationality and manageability to the increasingly difficult responsibility of balancing the legitimate rights of aliens to be protected from human rights abuse while assuring that gross human rights abusers are not able to use our laws to evade justice for their crimes. We trust that the members of this subcommittee will support adoption of this bill.

    Mr. SMITH. Ms. Massimino?

STATEMENT OF ELISA C. MASSIMINO, DIRECTOR, WASHINGTON OFFICE, LAWYERS COMMITTEE FOR HUMAN RIGHTS
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    Ms. MASSIMINO. Thank you, Chairman Smith, Congresswoman Jackson Lee, Mr. Pease. Thank you all for inviting me to testify today. My name is Elisa Massimino. I am the Director of the Washington Office of the Lawyers Committee for Human Rights.

    I want to commend you, Chairman Smith, for convening this hearing on the complex and important issue of ensuring accountability for those guilty of the most serious human rights abuses. For more than 20 years, the Lawyers Committee has worked to hold all governments, including our own, accountable to human rights standards contained in the Universal Declaration of Human Rights and the subsequent treaties implementing those standards.

    As you know, protecting those who flee persecution and torture and ensuring that human rights abusers are brought to justice have been central features of our work. For that reason, we are particularly grateful for the opportunity to share with you our views on how best to accomplish those goals.

    Mr. Smith, I know you and I have had numerous opportunities over the years to talk about immigration policy and I have been struck repeatedly by our common ground in the search to find reasonable solutions that will ensure protection of those who most need our protection from persecution and torture, and I think there is much common ground here for us to work from.

    The proposals that are under discussion today stem from the belief that torture is an abhorrent practice which must be eradicated and that those who engage in torture should find no safe haven but rather should be brought to justice. This same belief is what motivated the United States and other countries to join together in drafting the U.N. Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. Not surprisingly, the United States was a leader in those negotiations that led to the adoption of the treaty. In 1991, the Senate gave its advice and consent to ratification and the U.S. formally obligated itself to abide by the provisions of the treaty in 1994, after the President deposited the instrument of ratification with the U.N. Since that time 6 years ago, the provisions of the treaty have been binding international obligations with which the U.S. must comply.
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    The chief goal of the Convention is very simple, to prevent torture. The treaty defines torture in quite clear terms and lays out explicitly the steps that each state party must take toward this goal. The United States, as a state party to the Convention, must meet these obligations and report regularly, as it did for the first time a year ago, to an international committee of experts on its progress.

    Broadly, the Torture Convention requires the U.S. and other state parties to do three things: Prohibit torture and other forms of cruel, inhuman, and degrading treatment or punishment, prosecute torturers, and refrain from returning any person to a place where there is a substantial likelihood that they might be subjected to torture. There is no provision in the treaty requiring or encouraging the expulsion of persons suspected of having engaged in torture. To the contrary, if such a person is identified within the jurisdiction of a state party, the treaty requires that he be taken into custody and that the allegations against him be thoroughly investigated, and, if found to be well founded, that he be brought to trial for his crimes.

    The title of the bill under discussion today, the Serious Human Rights Abusers Accountability Act, rightly puts the emphasis on accountability, but in some ways the title is a misnomer, because while the bill seeks clearly to ensure that human rights abusers do not gain immigration benefits in the United States, it may, in fact, provide them with an even greater benefit, freedom from prosecution. Because many societies are either unable or unwilling to seek extradition for prosecution of serious human rights abusers, when the United States declines to seize jurisdiction over such individuals, it misses an important, in some cases the only, opportunity to hold them accountable for their crimes. This subverts the purpose of the Convention by sending a message to would-be abusers that it will be possible to evade accountability for even the most serious human rights abuses.
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    It was for this reason that Congress enacted 18 U.S. Code section 2340(a). This provision of our law makes it a Federal crime to commit torture outside the United States and gives prosecutors jurisdiction over anyone, a U.S. citizen or otherwise, who engages in torture.

    I should note that the limitation on this jurisdiction, that the crime must have taken place outside the U.S., has come under criticism from many quarters, including the U.N. Committee Against Torture when it examined the U.S. delegation in May. We believe Americans should have the same protection against torture under our Federal laws as individuals outside the U.S. have, and today, H.R. 5325 was introduced to remedy this anomaly in the law by explicitly criminalizing torture, such as that perpetrated against Abner Louima by New York City police officers, wherever it occurs. I hope you and your colleagues will give serious consideration to this proposal.

    In closing, I just wanted to stress one last point. The existing law criminalizing torture outside the U.S. has been on the books for 6 years. As many of the witnesses today have pointed out, there seem to be no lack of potential defendants present in the U.S. Why, then, has there never been such a prosecution? I encourage all of you to ask the Justice Department that question, and all of you who have expressed an interest in ensuring accountability for serious human rights abusers should call on the administration to make prosecution of human rights abusers a priority.

    We suggest that you refer individuals in your districts who you suspect of having engaged in torture to the U.S. Attorney for investigation and, if appropriate, prosecution. Toward that end, we recommend more effort be put into educating Federal prosecutors about their authority under section 2340(a) and encouraging prosecutions of suspected torturers whenever such individuals are found in the United States. The individual Mr. Foley spoke about might be a good place to start.
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    I realize my time is short, Mr. Chairman, so I just want to mention that there are a number of provisions in your proposal which we find problematic, and I would be happy to discuss them during the question period. They are outlined in more detail in my written testimony.

    But just in conclusion, I want to say that the outrage that so many people feel when they discover serious human rights abusers in their midst, this feeling of outrage is one that we share. We represent people who have been victims of human rights violations. They come into my office and say that they saw the person who persecuted them, or who tortured them in the 7-Eleven or out driving along the road. I ask those people, what do you want done, and what they want done is they want that person in jail. As a last-ditch effort, we should make sure that they do not get immigration benefits. But the first line of defense needs to be putting those people in the dock and holding them accountable for their crimes.

    Mr. SMITH. Thank you, Ms. Massimino. There is a rare agreement, I think, on the objective and the goals, if not the means, and we can talk about the means at another point.

    [The prepared statement of Ms. Massimino follows:]

PREPARED STATEMENT OF ELISA C. MASSIMINO, DIRECTOR, WASHINGTON OFFICE, LAWYERS COMMITTEE FOR HUMAN RIGHTS

INTRODUCTION
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    Chairman Smith, Congresswoman Jackson Lee and Members of the Subcommittee, thank you for inviting me to testify today. My name is Elisa Massimino and I am the Washington Director of the Lawyers Committee for Human Rights. I want to commend you for convening this hearing on the complex and important issue of ensuring accountability for those guilty of the most serious human rights abuses. For more than 20 years, the Lawyers Committee has worked to hold all governments—including our own—accountable to human rights standards contained in the Universal Declaration of Human Rights and the subsequent treaties implementing those standards. As you know, protecting those who flee persecution and torture, and ensuring that human rights abusers are brought to justice, have been central features of our work. For that reason, we are particularly grateful for the opportunity to share with you our views on how best to accomplish these goals.

I. THE INTERNATIONAL LEGAL CONTEXT

    The proposals under discussion today stem from the belief we all share that torture is an abhorrent practice which must be eradicated, and that those who engage in torture should find no safe haven and but rather should be brought to justice. These beliefs motivated the United States and other countries to join together in drafting the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter, ''Convention Against Torture''). Not surprisingly, the United States was a leader in the negotiations that led to the adoption of this treaty. In 1991, the Senate gave its advice and consent to ratification, and the United States formally obligated itself to abide by the provisions of the treaty on November 20, 1994, 30 days after President Clinton deposited the instrument of ratification with the United Nations Secretary-General. Since that time 6 years ago, the provisions of the treaty have been binding international obligations with which the United States must comply.
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    The chief goal of the Convention is simple: to prevent torture. The treaty defines torture in quite clear terms and lays out explicitly the steps that each State Party must take towards this goal. The United States, as a State Party to the Convention, must meet these obligations and report regularly, as it did for the first time one year ago, to an international committee of experts on its progress. Broadly, the Torture Convention requires the United States and other State Parties to:

 Prohibit torture and other forms of cruel, inhuman or degrading treatment or punishment. States must take all necessary legislative, administrative, judicial, and other measures to prevent torture within their jurisdiction. This includes training for state officials such as police officers, border patrol agents, and prison guards; and must include provisions criminalizing acts of torture. States are also responsible for educating their agents about the obligation to refrain from acts of torture and to refuse orders from superiors directing them to commit acts of torture.

 Prosecute torturers. States have an obligation either to extradite suspected torturers found in their jurisdiction or, if extradition is not sought or would be prohibited because of the risk that the suspect would himself be tortured, to prosecute suspected torturers found within their jurisdiction.

 Refrain from returning any person to a place where there is a substantial likelihood that he or she would be subjected to torture.

    There is no provision in the treaty requiring or encouraging the expulsion of persons suspected of having engaged in torture. To the contrary, if such a person is identified within the jurisdiction of a State Party, the treaty requires that he be taken into custody, that the allegations against him be thoroughly investigated and, if discovered to be well-founded, that he be brought to trial for his crimes.
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II. STRATEGIES FOR ENSURING ACCOUNTABILITY

    The title of the bill under discussion today, ''the Serious Human Rights Abusers Accountability Act,'' rightly puts the emphasis on ''accountability.'' But in some ways that title is a misnomer. While the bill clearly seeks to ensure that human rights abusers do not gain immigration benefits in the United States, it may in fact provide them with an even greater benefit: freedom from prosecution. Because many societies are either unable or unwilling to seek extradition for prosecution of serious human rights abusers, when the United States declines to seize jurisdiction over such individuals, it misses an important—perhaps the only—opportunity to hold them accountable for their crimes. This subverts the purpose of the Convention by sending a message to would-be abusers that it will be possible to evade accountability for even the most serious human rights abuses.

    It was for this reason that Congress enacted 18 USC §2340A. This provision of our law makes it a federal crime to commit torture outside the United States and gives prosecutors jurisdiction over anyone—U.S. citizen or otherwise—who engages in torture. I should note that the limitation on this jurisdiction—that the crime must have taken place outside the United States—has come under criticism from many quarters, including the UN Committee Against Torture when it examined the United States delegation in May. We believe Americans should have the same protection against torture under our federal laws as individuals outside the United States have, and we expect a bill to be introduced soon in the House to remedy this anomaly in the law by explicitly criminalizing torture, such as that perpetrated against Haitian immigrant Abner Louima by New York City police officers, wherever it occurs.

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    The law criminalizing torture outside the United States has been on the books for 6 years and, as many of the witnesses today have pointed out, there seem to be no lack of potential defendants present in the United States. Why then has there never been such a prosecution? We urge you, Chairman Smith, and all your colleagues who have expressed an interest in ensuring accountability for serious human rights abusers, to call on the Administration to make prosecution of human rights abusers a priority, and we suggest that you refer individuals in your districts who you suspect of having engaged in torture to the US Attorney for investigation and, if appropriate, prosecution. Toward that end, we recommend that more effort be put into educating federal prosecutors about their authority under §2340A and encouraging prosecutions of suspected torturers whenever such individuals are found in the United States. The individual Mr. Foley spoke about might be a good place to start.

    While none of us wants torturers to live freely in the United States, deportation, removal, and denial of entry or other immigration benefits is a poor substitute for bringing such individuals to justice. We are obligated under the Convention to take steps to ensure that those who commit torture and other heinous abuses are held accountable for their crimes. This obligation will of course be difficult to fulfill if our initial reaction upon discovering the presence of such a person in the United States is to expel him. Once expelled, or prevented from entering, the capacity of the United States to bring such a person to justice will obviously be substantially diminished. While denial of immigration status to such individuals may be seen as a sort of punishment, it is a slap on the wrist in comparison to the penalties available under §2340A.

III. SPECIFIC COMMENTS REGARDING H.R. 5285

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    The central theme I would like to sound today is that serious human rights abusers should be prosecuted, preferably in their home countries but if not, wherever they are found. But in those circumstances where there are insurmountable barriers to both extradition and prosecution, we certainly share your view, Chairman Smith, that such individuals should not be granted immigration benefits in the United States. Although we have not had the opportunity yet to study the bill in depth, upon initial reading we do, however, have some specific concerns about the approach taken by H.R. 5285 towards achieving that goal, which I would like to outline briefly.

A. Eligibility for Article 3 Relief

    First among these concerns regards eligibility for relief under Article 3 of the Convention Against Torture. Article 3, the so-called ''non-refoulement provision'', prohibits State Parties from returning anyone to a place where there is a substantial likelihood that they would be subjected to torture. This is a blanket ban on return, to which there are no exceptions.

    Section 12 of the proposed bill, however, would permit the United States to send a serious human rights abuser back to a place where there is a substantial likelihood that he or she would be subjected to torture. I would like to clarify at the outset that adoption of such a provision—and action taken pursuant to it—would put the United States in clear breach of its obligations under the Convention. More importantly, perhaps, it would undermine the international consensus that torture is such an abhorrent practice that no one—not even those guilty of the worst human rights crimes themselves—should be subjected to it.

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    It has been suggested today that Congress must have somehow been unclear concerning the scope of this provision of the Convention and that it could not have intended to protect from torture people who themselves are guilty of it. That suggestion is misleading in the extreme. Not only did the Senate clearly understand the import of this provision during the deliberations which preceded its giving advice and consent to ratification, but Congress later recognized that the Article 3 obligation was being haphazardly applied by the federal agencies and passed legislation requiring the State and Justice Departments to promulgate regulations designed ensure a fair and transparent process for decision-making in these cases.

    The resulting procedures, particularly those dealing with extradition, did not, we believe, go far enough to ensure that those who need protection from torture have a fair opportunity to raise their claims, and the particular relief granted in such cases can hardly be described as overly-generous. To the contrary, relief under Article 3 of the Convention has been narrowly tailored to ensure that it provides little more than the bare minimum required by the treaty: to refrain from returning people to torture. The suggestion that eligibility for this relief should be further narrowed is ill-founded, unnecessary and should be abandoned.

B. Limitations on Refugee Status

    In addition to limiting relief for individuals at risk of being tortured, the bill also would expand the already expansive grounds on which an individual could be excluded from refugee protection. On this point, we would like to sound a note of caution. The UN Convention relating to the Status of Refugees, upon which our own asylum laws are grounded, clearly acknowledges, in Article 1F, that certain individuals who might otherwise meet the refugee definition are not deserving of protection because they have engaged in war crimes, crimes against humanity, or other serious abuses. These exceptions are narrowly tailored and should be strictly construed. Current US law already contains a proliferation of exceptions that go far beyond those set out in the treaty and which, in practice, have been construed far too broadly. Next week in Geneva, the Lawyers Committee will be presenting the results of a multi-year study which examines the importance of strictly adhering to the Convention-based exclusion clauses and of ensuring that those subject to exclusion from refugee protection have adequate opportunity to contest allegations that they should be excluded from protection. The stakes of error or overbreadth in exclusion decisions are very high, and any expansion of exclusion grounds should track the language of Article 1F.
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C. Exception for Acts Committed Under Duress

    The bill would except from the provisions denying immigration status individuals who have committed serious human rights abuses ''under extreme duress'' where ''the harm the individual feared substantially exceeded the harm attributable to the alien's conduct.'' While we understand the desire to craft this exception around the humanitarian law norm of proportionality, we are concerned that the proposed exception is based on an overly broad version of the defense of duress.

    Accepted principles of international criminal law established at the Nuremberg Tribunal and reinforced by the International Criminal Tribunal for the Former Yugoslavia (ICTY), provide that individuals may be relieved of criminal responsibility for grave abuses due to duress in limited circumstances. The Nuremberg Tribunals applied the duress defense to acts that were carried out under a real and imminent threat of death or serious bodily harm, so long as the act committed in response to the threat did not cause greater harm than the harm sought to be avoided. The ICTY, on the other hand, has rejected the World War II precedent and found that the defense of duress ''does not afford a complete defence to a soldier charged with a crime against humanity and/or a war crime involving the killing of innocent human beings.'' While the case law does not cover all the circumstances that would be reached by the current bill, it is clear that the proposed construction of the exemption based on a defense of duress is too broad.

    Indeed, if the defense is available at all in international criminal law, it is not reducible to a simple test of proportionality. For the duress defense to be available, the individual must have been under a real and imminent threat of death or serious bodily harm, and he or she must not have harmed innocent human beings. In addition, we believe that any such exemption should not be available to individuals who have knowingly exposed themselves to the threat in order to be relieved of responsibility for abuses. Finally, this defense is exceptional and must be kept distinct from the invalid defense of acting under superior orders, which is explicitly excluded under Article 2 of the Convention Against Torture.
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E. Court-stripping

    Section 11 of the bill would preclude judicial review of revised regulations and individual claims arising from those regulations. Although language stripping the courts of jurisdiction to review implementing regulations and individual cases has become a standard rider in nearly all proposed immigration legislation, we strongly urge you to reconsider this approach. Over more than twenty years of work on these issues, the Lawyers Committee has seen countless cases in which agency error risks depriving refugees and victims of torture of the protection they need. This has been particularly true more recently, under expedited removal and other truncated procedures that virtually ensure error due to the limited opportunity for oversight and review. Judicial review is a critical component of due process, and barring the courts from consideration of these issues risks serious harm to people who deserve our protection. This is especially true in the context of regulations implementing the Convention Against Torture, since the treaty includes a number of non-derogable, jus cogens norms that the United States has committed itself to upholding without restriction.

CONCLUSION

    We urge you, Chairman Smith, and all of your colleagues who care about this important issue to take the time to consider carefully the various proposals, in addition to H.R. 5285, that have been put forward to address the problem of impunity for human rights abusers. I believe there is ample room for consensus around a solution, but the issue is a complex one and requires careful consideration of our international legal obligations and of the best strategies for accountability.
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    The justifiable outrage felt by many when it is discovered that serious human rights abusers have found their way into the United States may lead well-meaning people to call for their immediate expulsion. Such individuals certainly should not be enjoying the good life America has to offer. But when we ask the question ''where should they be?'' the answer is clear: they should be in the dock. That is the essence of accountability, and it should be the central goal of any scheme to penalize human rights abusers. But the bill currently under discussion places a premium on expulsion and preventing human rights abusers from gaining access to the United States. This approach should instead be the penalty of last resort, only when extradition or domestic prosecution is impossible. If expulsion is used as the primary strategy against human rights abusers who are either in or seeking to enter the United States, the result may be that they are never made to pay for their crimes. That is a result we all want to avoid.

    Mr. SMITH. Ms. Augustin, first of all, I appreciate your comments, and I am going to quote them back to you because I thought they were so good. You talked about the bill being urgently needed, you talked about the present situation being shocking and embarrassing, and you talked about the high level of fraud. I only wish you still worked for the INS and could influence them, but maybe there will be another time in the future.

    Let me just ask a question or two, if I may. Your testimony, at least, obviously contrasts with some of what the INS said. Why do you think you have a difference with the INS? By the way, the INS has changed their position since we drafted the bill, but what is the reason for the difference?

    A second question that you might want to answer at the same time is that you have worked with INS detention officers. What did you see and hear and what was their experience? I guess my point here is, you have first-hand experience and a lot of us do not.
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    Ms. AUGUSTIN. Well, with regard to any contradictions, I think that that is explained by the fact that INS headquarters is looking at the statistics. I was handling the cases. You may look at a statistic that may tell you that someone who is convicted of aggravated assault was granted Torture Convention protection, but I witnessed the cases. For example, in a case like that, there was a case like that. I know that the victim was 13 years old and she was sexually abused by her stepfather and I know that she has now had to be adopted by a different family because she was so traumatized, and I know that her mother is institutionalized from a nervous breakdown from the guilt that she let this happen to her child. So I think when you have hands-on experience, your perspective is going to be very different from when you are just looking at numbers.

    The detention officers at INS, I think they did a very good job at trying to keep the very worst types of aliens detained. The problem was always with space, and even if they might have had someone in custody for a long time that they thought was a very bad apple, at some point, there was a new proceeding or a mandatory custody case that might require them to release that person. So I think they did a good job, but—and they did a 90-day review on all these cases on all the people that remained detained and they did try to keep Torture Convention recipients detained, but Torture Convention recipients were on their list of people to review for relief.

    Mr. SMITH. Thank you, Ms. Augustin, for the answer.

    Mr. Stein, you made a number of good suggestions in your testimony which we, I hope, can incorporate. But just generally speaking, why do you think a private right of action is needed to remove some of the serious human rights abusers?
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    Mr. STEIN. A private right of action, there is certainly some formal complaint process to try to initiate an inquiry by the INS and the State Department. Certainly, Mr. Chairman, because of the bureaucratic inertia, which has been cited here on numerous occasions regarding citizens or aliens who have come here fleeing persecutions only to find themselves confronted with the persecutor and need to feel some immediate recourse. Private standing has to be limited by some rational nexus, as if individuals who may have some attachment to the home community. But certainly some process is needed to put pressure on to initiate the inquiry.

    Mr. SMITH. A second question is, why do you think we need to clarify the definition of membership in a particular social group, which is a phrase of art there?

    Mr. STEIN. Well, membership in a political social group, which goes back to the 1951 Convention on the Status of Refugees, is now subject to ever-broadening interpretations which creates a wide variety of litigations owing to its subjective nature. If only those who are in a particular social group can qualify, then everybody becomes a member of a social group. The definition seems to expand as rapidly as the imagination of those who are looking for a platform for their particular, if valid, cause.

    Mr. SMITH. Too broad?

    Mr. STEIN. Too broad.

    Mr. SMITH. Thank you. Ms. Massimino, thank you for your comments, as well. I gather we both agree that the torturers should be prosecuted. After all, that is the purpose of the Convention. But, in my judgment, obviously, because that is one of the reasons for the bill, the Department of Justice is not enforcing Congressional intent and not going far enough and perhaps they feel constrained by the Torture Convention, I do not know, but that is one of the reasons we want to make some changes.
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    I just want to point out, and I assume that you would agree and are aware that the Supreme Court has ruled that Congress can, in fact, make changes in international conventions. We are not prohibited by law. There is nothing wrong with our effort to do so.

    Ms. MASSIMINO. I am aware of the case law, but what Congress is empowered to do is only to alter the obligations vis-a-vis people inside the United States. But that does not alter the obligation that the U.S. as a country has toward the other state parties, since this is an agreement amongst state parties.

    I did want to point out that there was some suggestion today that perhaps the Senate did not fully understand what was going on, or what article 3 of the Convention really meant. I think that is not true, frankly. I was there during those negotiations. I was party to a lot of conversations and discussed the concern about the limits of article 3 and how we could make that comport with our own desire to make sure that we are not admitting undesirable people to the country.

    Mr. SMITH. I think what was difficult for the people who were talking about the subject back then is that they were not able to confront the present situation. I cannot conceive that Congressional intent would have supported the current situation. You yourself said you would like to see them locked up, they should not get immigration benefits, and so forth. So I think that is the reason why a lot of us have a feeling that Congressional intent has not been followed, because we cannot believe that they intended for this to be allowed to occur. As far as the case law goes, the Supreme Court has been pretty clear what Congress can and cannot do.
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    I do appreciate our agreement on so many of the issues and my time is up and I will recognize the gentlewoman from Texas for her questions.

    Ms. JACKSON LEE. Thank you very much, Mr. Chairman. As you have so noted, our opening statement will be submitted into the record. I would just like to acknowledge the fact that the Torture Convention obligations require us to prosecute torturers, I believe, found in our country and I am concerned that we may be sidestepping some of those international obligations if we do not build prosecution mechanisms in what we are doing.

    Also, I think as we track the responsibilities to prosecute, I happen to believe due process and judicial review should certainly be a part of it for us to be consistent with both our values and our legal principles.

    So let me focus questions on trying to fix what we may perceive is broken and to provide the protection for the most vulnerable.

    Ms. Augustin, you indicated that most of whom you have seen in terms of who would be able to benefit under the Torture Convention were the least meritorious, and obviously, that is a broken system that needs to be fixed. Can you share with me any perceptions you may have that in asylum and Torture Convention cases dealing with the INS, there may be what we would call fraud, possibly, and whether or not the INS even has the resources to deal with these cases, from your obvious perspective as a former INS attorney.

    Ms. AUGUSTIN. I would like to say, Congresswoman, that the problem is very big, is very real. There are resources that we have to combat it. In many cases, I was successful in making contact with embassies abroad so they could conduct investigations. Whenever the State Department weighed in individually and not by just a generalized report, those were always very helpful, and that is a resource that is available to us.
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    Our special agents play a big role in this. I recall there was one time when I looked at an asylum application from Rwanda and I said, this person needs asylum, and I was talking about the application with my colleague and he had an identical application. We soon discovered that it was an entire ring. I was able at that point to use special agents to actually conduct what we call bed checks, went to the homes and spoke to neighbors and roommates and found out that these persons were not even from Rwanda.

    So the tools are out there, they are just not used enough. And if the trial attorney does not have the time or if they are called in to handle a case at the last minute, then obviously they cannot conduct these types of investigations. They are available to us and we should use them.

    Ms. JACKSON LEE. What would be a legislative fix to get to that problem that you just mentioned? What would need to be done? Can it be fixed administratively or do you think some legislative language should try to dig into that kind of fraudulent behavior or activity?

    Ms. AUGUSTIN. I think the first thing we need to do is recognize that it is a problem, and I do not think that that has ever been done.

    One of the things we can do is require that certain things be done in cases where fraud is suspected. For example, some of the tools that I mentioned, make it a requirement that these actions be taken in those cases. Not only is it not a requirement, but it is not really even encouraged. It is up to the trial attorney whether they want to do that, and that often made us feel like no one cared about what we were doing.
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    Ms. JACKSON LEE. Thank you. Ms. Massimino, thank you very much for your testimony. I guess I would like to talk to you more about the due process issues and how we can throw a large net to get those who need to be included and deal with questions of due process, and I do like your idea in the legislation that is being drafted dealing with the torture here in the United States, so I look forward to working with you further on that and working with other members who are working on that issue.

    Do you think that the term ''human rights abuser'' is so broad that it might get innocent persons, as you have reviewed this legislation?

    Ms. MASSIMINO. We have only had a chance to preliminarily review this and we have also just barely looked at the administration's proposal. But I think it is probably wiser to take the approach of enumerating explicitly the particular crimes for which someone would be considered a serious human rights abuser.

    Ms. JACKSON LEE. I think that would help women, as well. I have legislation dealing with battered immigrant women and the chairman has been very kind for us to have a hearing and I am sure hoping we will have a markup, maybe before we get out of here.

    Ms. MASSIMINO. On the due process concerns, if I could just add, I mean, that is something that is, of course, of concern to us not just in this particular area but in all areas because it is one of the underlying principles of all international human rights standards, that people have a chance with fair procedures to assert their rights and the protections to which they are entitled.
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    In cases where we are discussing whether or not someone who we believe would be subjected to torture if they are returned ought nonetheless to be returned, in those circumstances, above all else, I would think, you would want to ensure that you have the strictest of due process protections because the consequences of error in a case like that are so grave.

    Ms. JACKSON LEE. Just concluding quickly, could you tell me whether duress is too easy to establish? That is certainly a defense that has been used. I was made to do it. And should we have—I think you answered due process, but specifically judicial review—included in this legislation?

    Ms. MASSIMINO. I think we must look to the courts to oversee the implementation of provisions like this.

    On the question of duress, I addressed this in more detail in my written statement. This is a concept that has received a lot of attention in recent years in international case law, both in the Yugoslav tribunal, also in the deliberations about the International Criminal Court. I think as it is stated in the current proposal, the defense is too broad. It is, in effect, a loophole to the loophole that needs to be tightened up and we think that that can be done. But the language as it currently stands, I think is too broad.

    Ms. JACKSON LEE. Thank you, Mr. Chairman. Thank you very much for your testimony.

    Mr. SMITH. Thank you, Ms. Jackson Lee.
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    Do members have any questions who are here? If not, let me announce while you all are here, because you are interested, the ranking member, Ms. Jackson Lee, has requested that we put off the markup of the Serious Human Rights Abusers Accountability Act and at her request we are going to do so, but with the great expectation that between now and next Tuesday, which we will set for a time of markup, that the various parties involved will be able to get together and will be able to come up with changes that will be acceptable to all so that we can move forward.

    Also, because we clearly do not have enough members to go forward with the other business at hand, because of lunchtime, and other conflicts that members have, we will put off all subcommittee business and markups and requests for reports until next Tuesday.

    But we thank you all for your testimony. It has been very, very helpful.

    Ms. JACKSON LEE. Mr. Chairman?

    Mr. SMITH. The ranking member is recognized.

    Ms. JACKSON LEE. Thank you very much, Mr. Chairman, for your cooperation and we look forward to working on those bills in the next week.

    Mr. SMITH. We stand adjourned.

    [Whereupon, at 11:56 a.m., the subcommittee was adjourned.]
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(Footnote 1 return)
The basis for the motions to reopen is not recorded in the EOIR database. If the motion was granted, the alien could then file an application for CAT protection. The application for CAT protection is recorded in the database. By using related data application information, the number of motions to reopen for the purpose of applying for CAT protection which were granted can be determined. Conversely, the number of denials for motions to reopen relating to CAT protection cannot be determined.


(Footnote 2 return)
We are unable to provide the Committee with the actual fiscal year in which a CAT application is filed because the EOIR computer database does not track the date of such filings.


(Footnote 3 return)
Criminally charged aliens are those who the INS has charged as being removable under the criminal grounds for removal. (Sections 212 and 237 of the Immigration and Nationality Act.) Such grounds include aggravated felonies, certain firearms violations, domestic violence, crimes involving moral turpitude, or crimes involving controlled substances.


(Footnote 4 return)
Adopted by the UN General Assembly on December 10, 1984. Signed by the U.S., April 18, 1988.