SPEAKERS CONTENTS INSERTS
Page 1 TOP OF DOC
88–220 PDF
2003
IMMIGRATION RELIEF UNDER THE CONVENTION AGAINST TORTURE FOR SERIOUS CRIMINALS AND HUMAN RIGHTS VIOLATORS
HEARING
BEFORE THE
SUBCOMMITTEE ON IMMIGRATION,
BORDER SECURITY, AND CLAIMS
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
JULY 11, 2003
Serial No. 34
Page 2 PREV PAGE TOP OF DOC
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
MELISSA A. HART, Pennsylvania
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
Page 3 PREV PAGE TOP OF DOC
MARSHA BLACKBURN, Tennessee
JOHN CONYERS, Jr., Michigan
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
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California
PHILIP G. KIKO, Chief of Staff-General Counsel
PERRY H. APELBAUM, Minority Chief Counsel
Subcommittee on Immigration, Border Security, and Claims
JOHN N. HOSTETTLER, Indiana, Chairman
JEFF FLAKE, Arizona
Page 4 PREV PAGE TOP OF DOC
MARSHA BLACKBURN, Tennessee
LAMAR SMITH, Texas
ELTON GALLEGLY, California
CHRIS CANNON, Utah
STEVE KING, Iowa
MELISSA A. HART, Pennsylvania
SHEILA JACKSON LEE, Texas
LINDA T. SÁNCHEZ, California
ZOE LOFGREN, California
HOWARD L. BERMAN, California
JOHN CONYERS, Jr., Michigan
GEORGE FISHMAN, Chief Counsel
LORA RIES, Counsel
ART ARTHUR, Full Committee Counsel
CINDY BLACKSTON, Professional Staff
NOLAN RAPPAPORT, Minority Counsel
C O N T E N T S
JULY 11, 2003
OPENING STATEMENT
The Honorable John N. Hostettler, a Representative in Congress From the State of Indiana, and Chairman, Subcommittee on Immigration, Border Security, and Claims
Page 5 PREV PAGE TOP OF DOC
The Honorable Sheila Jackson Lee, a Representative in Congress From the State of Texas, and Ranking Member, Subcommittee on Immigration, Border Security, and Claims
The Honorable Steve King, a Representative in Congress From the State of Iowa
WITNESSES
Mr. C. Stewart Verdery, Assistant Secretary for Policy and Planning, Border and Transportation Security Directorate
Oral Testimony
Prepared Statement
Mr. Eli Rosenbaum, Director, Office of Special Investigations, U.S. Department of Justice
Oral Testimony
Prepared Statement
Mr. Dan Stein, Executive Director, The Federation for American Immigration Reform
Oral Testimony
Prepared Statement
Ms. Regina Germain, Georgetown University Law Center
Oral Testimony
Prepared Statement
Page 6 PREV PAGE TOP OF DOC
APPENDIX
Material Submitted for the Hearing Record
Prepared statement of the Honorable Sheila Jackson Lee, a Representative in Congress From the State of Texas, and Ranking Member, Subcommittee on Immigration, Border Security, and Claims
Immigration Case: Yousef Hamadi (redacted)
Prepared statement of the Honorable Richard Krieger, President, International Education Missions, Inc.
Prepared statement of Morton Sklar, Executive Director, World Organization Against Torture
Prepared statement of Susan Benesch, Refugee Advocate, Amnesty International USA
IMMIGRATION RELIEF UNDER THE CONVENTION AGAINST TORTURE FOR SERIOUS CRIMINALS AND HUMAN RIGHTS VIOLATORS
FRIDAY, JULY 11, 2003
Page 7 PREV PAGE TOP OF DOC
House of Representatives,
Subcommittee on Immigration,
Border Security, and Claims,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 9 a.m., in Room 2237, Rayburn House Office Building, Hon. John Hostettler (Chair of the Subcommittee) presiding.
Mr. HOSTETTLER. The Subcommittee will come to order.
The United States signed the Convention Against Torture and other cruel, inhuman, or degrading treatment or punishment in April 1988, and the Torture Convention was forwarded to the U.S. Senate for ratification, which occurred in October 1990. However, portions of the Convention Against Torture, or CAT, including the Article 3, the so-called ''nonrefoulement'' provision, were not self-executing.
The implementing legislation became law in October 1998. The Justice Department's regulations, which created immigration relief under the convention, took effect in March 1999. With the new form of relief from deportation available in March 1999, many aliens who had exhausted and were ineligible for all other forms of deportation relief filed motions to reopen or remand their cases so that they could now claim that they would be tortured upon return to their country, and therefore could not be deported.
From March 1999 through August 2002, the Justice Department adjudicated 53,471 alien applications for relief under the Convention Against Torture; 53,471 adjudications.
Page 8 PREV PAGE TOP OF DOC
Certainly a large number of criminal and illegal aliens are claiming they will be subject to torture. Only 1,741 aliens were granted CAT relief by immigration judges during those 3 1/2 years. Clearly many aliens are filing meritless claims and are using this international treaty as yet another immigration delay tactic to stay here in the U.S.
What is troubling is that 683 criminal aliens received such relief from immigration judges—aliens who have been barred from asylum and withholding of removal. This includes two murderers that we know of who killed a spectator at a Gambian soccer game and one who is implicated in a mob-related deadly shoot-out in Uzbekistan.
Given the 2001 Supreme Court Zadvydas v. Davis decision stating aliens whose countries will not take them back cannot be detained indefinitely, the Department of Homeland Security, or DHS, has decided that it must eventually release these aliens back onto the streets. DHS statistics indicate that approximately 500 criminal aliens have been released into American communities because of Zadvydas. This includes the Uzbekistan case.
Some, including the State Department, argue that we cannot bar serious criminals and human rights violators from CAT relief in the immigration context, because we would be violating the convention. I argue that we already are violating the convention. The convention contains 33 articles. Most of them state that a party to the convention shall not torture, and if a torturer is residing in a party country, the country is supposed to investigate, detain, prosecute, and extradite the torturer, if applicable, and possibly compensate victims. We are not doing any of this. Known foreign torturers are living in our midst, untouched. Nationals from Haiti, Somalia, and other countries with former repressive regimes identify past persecutors and torturers from their country in their American neighborhoods, shocked, and rightly so, that these bad actors live so freely in the U.S..
Page 9 PREV PAGE TOP OF DOC
The Justice Department is not detaining these people, investigating them criminally, or prosecuting them as we are obligated to do under the Torture Convention. The Justice Department argues that they have too few resources and more important concerns than to investigate and prosecute foreign nationals who committed acts on foreign soil. That is violating our commitment under the convention.
In addition, the law permits the State Department to seek diplomatic assurances that an alien would not be tortured if returned to a country. The State Department is not using this avenue either. Instead of the Government living up to its responsibilities under the Torture Convention, these bad actors are permitted to use the convention as a defense to deportation based on one article in the convention which states that a party cannot return a person to a country in which it is more likely than not that the person would be tortured.
So our immigration courts have become the only entity responsible for implementing our responsibilities under the convention. I seriously doubt that was the intent when we signed the convention and when the Congress passed the implementing legislation. In the implementing legislation for the convention, the Congress expressly stated in a subsection headed ''exclusion of certain aliens'' that to the maximum extent consistent with the obligations of the U.S. under the convention, the regulations required by the Senate legislation shall, quote, exclude from the protection of such regulations aliens described in section 241(B)(3)(b) of the Immigration Nationality Act, end quote. That section of the INA describes particularly serious criminals, terrorists, persecutors, genocide participants and dangers to the community. The Reno Justice Department disobeyed the Senate instruction by protecting such bad actors in the torture regulation.
Page 10 PREV PAGE TOP OF DOC
So to those who argue we cannot exclude such aliens from CAT relief because we would be violating the convention, I say the convention should not be looked at in a vacuum. We must also look to the implementing language.
Given the Congress's direction to except serious criminals and persecutors from the regulations, I do not believe we would be violating our commitment to the convention. Legislation has been introduced this Congress and last Congress that would make serious human rights violators inadmissible and deportable, but unless the CAT regulations are changed, placing human rights violators in removal proceedings will be a waste of time and money because they will likely be granted CAT protection and will be back on the streets. So why go through the expensive and timely court and appeal exercise?
In conclusion, let me reiterate that this hearing does not concern the thousands of foreign nationals that enter this country, both legally and illegally, to seek refuge from an oppressive and potentially torturous regime for, say, political or religious purposes. Rather, it is to inform the Congress and the American people of this disturbing and dangerous loophole; disturbing and dangerous because it has resulted in the presence on our Nation's streets of hundreds of dangerous aliens. Therefore, we will receive testimony as to the need for a change in the law to close that loophole.
At this time I recognize my colleague, the Ranking Member of the Subcommittee, Ms. Jackson Lee of Texas for an opening statement.
Ms. JACKSON LEE. Thank you very much, Mr. Chairman. And let me thank the witnesses for their presence here today.
Page 11 PREV PAGE TOP OF DOC
I think we all can agree that over the last couple of days we have seen the aspect of our Intelligence Community needs a lot of help, and so I can imagine the consternation of the Chairman on the number of 600 that may have, if you will, tainted what I think is an extremely important convention that has been signed by the United States. Because we have warts in our system, I don't believe we should thwart the United Nations Convention Against Torture when there are so many that are in need.
Though this is not directly related to the accessing of legalization, I always remind my colleagues that immigration does not equate to terrorism. Certainly amongst the many that may be applying for relief under this particular convention, there may be some of those who are less than desirable elements in this country, but, again, I think that we can focus more on rebuilding and fixing what is still a broken intelligence system to be able to protect the United States, rather than eliminating or undermining what are very important provisions to protect people's lives.
The United Nations Convention Against Torture is a fundamental pillar of our human rights and national interest policy. It prohibits our removal and extradition processes from turning aliens—returning aliens to countries where they probably would be tortured. It may increase the likelihood that torturers and other major human rights abusers will be held accountable for their actions through criminal prosecutions and civil liability lawsuits in U.S. courts. It supports our efforts to promote human rights compliance and prevent torture in foreign nations, and it encourages the growth of human rights-oriented standards and institutions throughout the world.
Page 12 PREV PAGE TOP OF DOC
Just yesterday I asked the President to send peacekeeping and humanitarian troops into Liberia. I gave a litany of reasons. Specifically, I indicated it is not a declaration of war. At the same time, I have joined the President in asking for Charles Taylor to step down and leave the country, but I have added to my request that Charles Taylor be immediately tried for war crimes, as he has been indicted. I am not out to let the scandals and the scoundrels escape, but I am out to protect this convention because it has value and purpose.
The Convention Against Torture is one of the four primary international human rights documents. It stands along with the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the Genocide Convention as the cornerstone of our country's and the international community's effort to stop the most heinous forms of governmental oppression and abuse.
I am disappointed that the United States is one of the only remaining countries that has not signed the convention regarding children; and therefore, we suffer in this country with enormous abuse of our children, constantly, because of some political issues that we have with the convention that the world has promoted to protect our children of the world.
However, Article 3 of the convention that we speak of today forbids a state party from forcibly returning a person to a country where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. This is country-specific. The prohibition does not bar forcibly returning the person to other countries in which he or she would not be in danger of being subjected to torture. There lies our relief.
I support this absolute standard, because torture is so horrendous and contrary to our ethical, spiritual, and democratic beliefs that it must be absolutely condemned and prohibited.
Page 13 PREV PAGE TOP OF DOC
This past week we saw a number of boys, young men now, from Sudan. Anyone can tell you the horrific activities that have gone on in the Sudan. Anyone can tell you of the horrific amputation policies in Sierra Leone, the raping of women who are pregnant, the stripping of babies from the wombs of mothers. This is torture that maybe the United States is not familiar with, and so we might cavalierly this morning talk about eliminating a provision or amending this convention on the basis of a few hundred. We have relief. We can deport them elsewhere.
Even the most abhorrent individuals, including criminals and torturers themselves, are entitled to invoke the protections of CAT in order to prevent from being returned to torture in their home countries. As I said, return them elsewhere.
In the Davis case of the United States Supreme Court, the United States held that—or the Supreme Court held that the detention provisions in the Immigration Nationality Act read in light of the Constitution's demands limit an alien's post-removal period detention to a period reasonably necessary to bring about that alien's removal from the United States. The Supreme Court found, further, that once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute except where special circumstances justify continued detention. The special circumstances may indicate that continued detention is necessary to protect the public, and I would agree with that.
In response to that, the Supreme Court decision, the former Immigration and Naturalization Service promulgated regulations for determining the circumstances under which an alien may be held in custody beyond the statutory removal period. These regulations authorize the Government to continue to detain aliens who present foreign policy concerns or national security or terrorism concerns as well as individuals who are especially dangerous due to a mental condition or personality disorder, even though their removal is not likely in the reasonably foreseeable future.
Page 14 PREV PAGE TOP OF DOC
While we may be prohibited from sending them back to their home countries, we are under an obligation to criminally prosecute them for acts of torture or other international or domestic crimes.
Also, although the grant of CAT protection is absolute, it is not permanent relief. It can be removed when the conditions in the home country change so as to eliminate the risk of torture. Therefore, we have options. We have acted. We have regulations. We have relief. We have made a commitment not to practice or tolerate torture under any circumstances or for any reason. I do not believe that Congress at this time should tamper with that commitment.
I believe that we should view that commitment as ultimate relief with the relief that we already have parallel to this convention that will protect the American people. What are our values? Are we willy-nilly because we have some sort of disagreement with our immigration policies to be able to undermine values that we have had in this country over and over again? I believe that we can and we must honor that commitment, and we can do so without endangering our society.
Mr. Chairman, we are not the Intelligence Committee, I realize that. But as I have looked over the last few days' of statements, I would begin to wonder whether we have the ability to protect ourselves with a legitimate and strong Intelligence Community. I respect those who are working hard, but I would hope Congress would look carefully at our Intelligence Community, as we might look to improve the information provided to this body, to the Executive.
Certainly there are some issues that I hope to be looking at, particularly in this Committee. But I think that we can find other ways of addressing this Committee's and the Congress's concern about this convention. I would ask that we listen intently to the witnesses, but yet I would also say that we might be moving too quickly against our values that I think are extremely important in this instance, and I thank the Chairman for yielding and I yield back.
Page 15 PREV PAGE TOP OF DOC
Mr. HOSTETTLER. Thank the gentlelady.
The Chair now recognizes the gentleman from Iowa, Mr. King, for an opening statement.
Mr. KING. Thank you, Mr. Chairman, and I will be brief. I want to get to the testimony, and I am looking forward to hearing the testimony. I thank you all for being here today to make this presentation. It is an important issue.
You know, the concept that we cannot return a person who is guilty of torture to those whom he has tortured is something that baffles me. If they had committed a crime of murder or some other crime of—a violent crime within a country, we would return them back to the country for that reason.
And so this is a dangerous loophole, as the Chairman has pointed out, and it is dangerous in this country when we release this number of approximately 683 that I am looking at, and of those we have some evidence that at least two have committed murder. I expect that is murder of American citizens. I know at these hearings in this room a few weeks ago, I asked the—actually the staff of one of the Members of Congress who testified here to produce the records of how many American citizens were murdered by noncitizen illegal immigrants in this country. When we add up the cost to American citizens' lives of loopholes in our policy, it will be staggering. And we will have these numbers at some point as we proceed with this investigation in a broad view of the immigration issues.
Page 16 PREV PAGE TOP OF DOC
So I see this as a piece to that puzzle, and we have a constitutional obligation to provide safety to the American people. There are many things we do in this Congress that we do not have a constitutional obligation to do, and that is not one of them. So I look forward to hearing this testimony and am hopeful that we will be able to in this Congress craft a policy that protects the people in this country and provides justice for those who are in this country legally as well as those who are innocent of crimes from other countries.
Thank you, Mr. Chairman, and I yield back.
Mr. HOSTETTLER. I thank the gentleman for his opening statement.
And for the record, I spoke in my opening statement of two individuals who we know have been—had been released as a result of Convention Against Torture relief; one of those men from Uzbekistan, another gentleman from Gambia. I failed to mention in my opening statement that while the Uzbecki gentleman is still in the country, the gentleman from Gambia, actually, for whatever reason, missed his home and voluntarily removed himself from the United States and returned to Gambia, even though he believed and attested to the fact that he was going to be tortured if he was removed from this country by the United States Government.
Mr. KING. Would the gentleman yield?
Mr. HOSTETTLER. Yes.
Mr. KING. Thank you, Mr. Chairman. I appreciate that clarification, and I was incorrect in my statement. And I know we have asked for information on any number of American citizens who have been murdered by this group of people in question here today. Do we have any evidence that that has not taken place?
Page 17 PREV PAGE TOP OF DOC
Mr. HOSTETTLER. It is not my—not to my knowledge.
Mr. KING. I just point out that the final numbers on that are pending and we have asked for that information. It is not available before this Committee.
Thank you, Mr. Chairman. I appreciate it.
Mr. HOSTETTLER. Yes. The Chair now wishes to introduce our panel, and the Chair wishes to thank you for your attendance today and your willingness to testify before us.
Stewart Verdery was confirmed last month as the first Assistant Secretary for Homeland Security for Border and Transportation Security Policy and Planning. Prior to joining the Department of Homeland Security, Mr. Verdery was the senior legislative counsel for the Government Affairs and Public Policy Office; representing Vivendi Universal Entertainment, Universal Music Group, and Vivendi Universal in Washington, D.C. before that. The Assistant Secretary was general counsel to U.S. Senate assistant Republican leader Don Nickles, counsel to two Senate Committees and to Senator John Warner. He graduated cum laude from Williams College and received his law degree from the University of Virginia School of Law.
Eli Rosenbaum is Director of the Office of Special Investigations, or OSI, in the Justice Department's criminal division. He has worked as a prosecutor and investigator of Nazi criminals at the U.S. Department of Justice for over 15 years. CBS Radio Boston has termed him, quote, the man the Nazis fear most, end quote. Besides working at the OSI, Mr. Rosenbaum has been a corporate litigator with a Manhattan law firm and was appointed general counsel of the World Jewish Congress in 1985, where he directed the investigation that resulted in the worldwide exposure of the Nazi past of former United Nations Secretary General and Austrian President Kurt Waldheim. Mr. Rosenbaum graduated from the Wharton School of the University of Pennsylvania and Harvard Law School.
Page 18 PREV PAGE TOP OF DOC
Dan Stein is the Executive Director of the Federation for American Immigration Reform. He is an attorney who has worked for nearly 21 years in the field of immigration law and reform. Prior to leading FAIR, Mr. Stein was Executive Director of the Immigration Reform Law Institute, a public interest litigation group that represented a variety of organizations in immigration and administrative law matters. He has also been in private law practice in real estate, Federal agency litigation, criminal law and tax-exempt corporate law. Mr. Stein is a graduate of Indiana University and the Catholic University School of Law.
Regina Germain has been a fellow at Georgetown University Law Center for the past 2 years where she teaches asylum and refugee law, including relief under the Convention Against Torture, to clinical law students who represent asylum seekers in immigration court. She serves on the National Asylum Committee Board of the American Immigration Lawyers Association.
Prior to her position at Georgetown, Ms. Germain was the senior legal counselor in the Washington office of the United Nations High Commissioner for Refugees. She graduated magna cum laude from University of Pittsburgh Law School, and cum laude from Georgetown University School in Foreign Service with a bachelor of science in foreign service. She is currently pursuing her master's of law degree in advocacy from Georgetown University Law Center.
Once again, I thank the panelists for being here today. Without objection, your written statements will be inserted in the record. You each will have 5 minutes to give an opening statement. We would appreciate that you stay as close to that 5 minutes as possible.
And Mr. Verdery, the floor is yours.
Page 19 PREV PAGE TOP OF DOC
STATEMENT OF C. STEWART VERDERY, ASSISTANT SECRETARY FOR POLICY AND PLANNING, BORDER AND TRANSPORTATION SECURITY DIRECTORATE
Mr. VERDERY. Thank you, Mr. Chairman, and Members of the Subcommittee. As you mentioned, my name is Stewart Verdery. I am Assistant Secretary for Border and Transportation Security Policy at the Department of Homeland Security. It is a pleasure to be back before the Committee again.
Thank you for inviting me to speak about the Torture Convention and its interaction with the more general issue of detention authority after the Supreme Court's 2001 decision in Zadvydas. Beginning in the 1970's, the United States championed the development of an international pact to eradicate torture. The Torture Convention was the product of the international communities to resolve—to combat this most extreme human rights violation.
Because torture is so horrific and universally condemned, the convention signatories agreed to refrain from removing or extraditing any individual to a country in which it was more likely than not that he or she would be tortured regardless of the existence of any ground that would otherwise warrant removal or extradition.
While urging appropriate constraints on this application, Congress, and specifically the Senate, recognized the absolute nature of this obligation when it enacted legislation in 1998 directing the Attorney General to promulgate regulations to implement the convention.
Page 20 PREV PAGE TOP OF DOC
In section 2242(C) of the 1998 Foreign Affairs Reform and Restructuring Act, Congress provided that the regulations shall incorporate the bars to withholding a removal, quote, to the maximum extent consistent with our international obligations under the convention, end quote.
Just 2 weeks ago, President Bush reaffirmed the United States' commitment to combat torture. On June 26, the UN International Day in Support of Victims of Torture, the President declared, quote, the United States is committed to the worldwide elimination of torture, and we are leading this fight by example. With this laudable goal in mind, it is important to frame this discussion of the Torture Convention in the larger context of the release of criminal aliens generally following the Zadvydas decision.
In that case the Supreme Court held that post order detention is permissible when removal is reasonably foreseeable or when there are special circumstances that justify continued detention. The Court observed that once an order of removal is administratively final, the alien's detention is, quote, presumptively reasonable, end quote, for up to 6 months in order to accomplish removal.
Thereafter, however, if the alien provides, quote, good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, end quote, the Government must rebut the alien's showing in order to continue the alien in detention.
Now, the Court did suggest there are circumstances involving particularly dangerous individuals, terrorists or others whose special circumstances could warrant continued detention. In general, however, when an alien is granted protection and cannot be removed to a third country, that alien's release may be ultimately required.
Page 21 PREV PAGE TOP OF DOC
After Zadvydas, the Justice Department revised existing post order custody review regulations to account for the likelihood of the alien's removal and to—for special circumstances where the United States may properly maintain custody of an alien who cannot be removed. These regulations apply equally to any deportable alien who cannot be removed, including those granted protection under this convention.
However, combined with this Zadvydas ruling, it is clear that the United States determination to, quote, lead by example, end quote, in the hearing of the Torture Convention creates tension with the Government's efforts to promote public safety. The regulatory exception in allowing continued detention does not apply to many criminal aliens. For example, narcotics traffickers or violent criminals who have demonstrated—I am sorry, have not demonstrated mental disease or defect would not generally fall under the Zadvydas exception, nor would human rights abusers. Thus, Zadvydas has limited the Government's ability to maintain custody of certain aliens who cannot be removed.
However, the number of Torture Convention grantees with criminal histories that have been released under Zadvydas should be viewed in the context of the large impact that that case—sorry, of that case, and the longstanding difficulties that the United States has had in removing certain groups of aliens.
During the 3 years that the torture regulations have been in effect, only a small number of persons have been granted torture protection. This fact demonstrates that there has been a very measured and careful approach to adjudicating Torture Convention cases. We attribute these relatively low numbers to the strict eligibility requirements set forth in the regulations and to the diligence of Department of Homeland Security attorneys and Department of Justice adjudicators to assure that those regulatory requirements are applied accurately. It is my understanding that less than 3 percent of applications for Torture Convention application are ultimately successful.
Page 22 PREV PAGE TOP OF DOC
Secondly, only a small portion of Torture Convention grantees are criminals or security threats. Of approximately 558 torture grantees in fiscal year 2002, less than 15 percent were granted deferral of removal, a more limited form of torture protection afforded to persons who would otherwise be subject to criminal or security-related bars.
Third, Torture Convention grantees comprise less than 1 percent of the total criminal aliens who since 1999 have been released from custody following a final order of removal. Between fiscal year 1999 and 2002, some 45,000 criminal aliens were released from INS or DHS custody. Of this total, only 490, about 1 percent, were Torture Convention grantees. The remaining 99 percent had final orders removal that could not be executed, not because of a treaty-based legal impediment such as the Torture Convention but largely because their respective countries of nationality were not willing to accept repatriation. In fact, a significant percentage of criminal Torture Convention grantees are nationals of a country that did not readily accept the return of its nationals and would be difficult to return even in the absence of the treaty. Cuba is one such country.
Now, Zadvydas undeniably limits our ability to detain criminal aliens who have final orders of removal, but erecting criminal- or security-related bars to Torture Convention protection or otherwise limiting the applicability of the convention would place the United States in violation of its international obligations with minimal impact on the larger problem of criminal aliens remaining in the United States.
The Department of Homeland Security is committed to ensuring the proper balance between our convention obligations and our mission to make our communities safe within the limits imposed by Zadvydas. We will continue to work creatively in applying the convention, to minimize to the greatest extent possible any negative effects on public safety. In doing so, we will fulfill the President's declaration that, quote, the United States is committed to the worldwide elimination of torture, and we are leading this fight by example.
Page 23 PREV PAGE TOP OF DOC
I thank you again for allowing me to offer these comments and look forward to any questions you might have. Thank you.
Mr. HOSTETTLER. Thank you, Mr. Verdery. And it is good to see you back before this Subcommittee.
[The prepared statement of Mr. Verdery follows:]
PREPARED STATEMENT OF C. STEWART VERDERY
Mr. Chairman and Members of the Subcommittee, my name is Stewart Verdery.
I am the Assistant Secretary for the Border and Transportation Security Policy within the Department of Homeland Security (DHS). Thank you for inviting me to speak on developments in the implementation of our 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), particularly with respect to the removal of criminal aliens.
Recently, this Administration reaffirmed the United States' commitment to prevent torture worldwide, a commitment that includes our obligations not to return an individual to a place where he or she is more likely than not to face torture. On June 26, 2003, the United Nations International Day in Support of Victims of Torture, President Bush declared that ''[t]he United States is committed to the world-wide elimination of torture and we are leading this fight by example.''(see footnote 1) The Department of Homeland Security is dedicated to this mission but also recognizes the importance of ensuring that this benefit is given to those that truly warrant such protection and is not used as a mechanism to thwart what otherwise would be an appropriate removal. It is the Department's challenge to ensure that this Convention is being applied properly, thereby maintaining integrity in our immigration system while protecting individuals from heinous acts of torture. Further, it is the Department's challenge to ensure that the mechanisms to apply this Convention are appropriate and properly balance the need to protect individuals with the need to ensure the safety of our communities.
Page 24 PREV PAGE TOP OF DOC
I wish to explore three aspects of our efforts to strike this balance. First, I will provide a framework for understanding the limited role of Convention Against Torture claims within the immigration system, including the most recent statistics and developments of the law regarding eligibility. Next, I will discuss tools available to ensure that we continue to meet our obligations under the Convention while minimizing the danger to the public. Finally, I will discuss the challenges arising from the Supreme Court's decision in Zadvydas v. Davis, particularly with respect to continued detention of certain aliens who receive Convention Against Torture protection. Taken as a whole, these issues demonstrate that fulfilling our international obligations under the Convention is generally not incompatible with robust efforts to remove criminal aliens from the United States.
It is important to realize that the United States' determination to adhere to the Convention at times may pose a challenge to the Government's ability to protect the public. As detailed below, when an alien is granted protection and cannot be removed to a third country, that alien's release will generally be required under Zadvydas. The Court's decision in that case does not limit the ability of the government to detain aliens who are especially dangerous, such as terrorists, but does mean many serious criminals and human rights violators must be released if they cannot be removed. With that said, it is notable that criminal aliens who have received Convention Against Torture protection make up less than one percent of the criminal aliens who, since 1999, have been released from custody following a final order of removal.
CONVENTION AGAINST TORTURE FRAMEWORK
The Convention Against Torture represents an international commitment to protect individuals from the most extreme form of human rights violations. Because of the horrific practice of torture, the parties to the Convention agreed to refrain from removing individuals to a country in which it is more likely than not that they would face torture, regardless of the existence of any ground that would otherwise warrant removal. The United States championed the development of an international pact opposing the use of torture and was a leader in ensuring the ratification of the Convention Against Torture, which has been in effect for the United States since 1994.
Page 25 PREV PAGE TOP OF DOC
Congress also recognized this obligation when it enacted legislation in 1998 implementing Article 3 of the Convention and directed the Attorney General to promulgate regulations implementing Convention protection.(see footnote 2) That legislation also required that the regulations incorporate the bars to withholding of removal, to the extent consistent with international obligations, in the scheme for providing protection. Thus, Congress acknowledged that there was an absolute prohibition to removal, while still urging appropriate constraints on its application.
The current Convention Against Torture regulations, which have been in effect since March 22, 1999, meet this requirement through the use of a two-tier system of torture protection, modeled on the existing withholding of removal framework. An individual who does not qualify for asylum may nonetheless obtain withholding of removal based on fear of torture, so long as he or she has not committed a particularly serious crime, is not a persecutor, has not committed a serious non-political crime outside the United States, or is not a danger to the national security. Because of the absolute nature of the Convention, and the statutory requirement to act consistent with our international obligations, the regulations also provide for an extremely limited form of protection known as ''deferral of removal'' which offers protection to an individual otherwise barred from withholding. It is important to recognize that since there are no bars to deferral of removal under the Convention, serious criminals, persecutors, terrorists and human rights violators may qualify for protection. Further, as I will discuss later, the Supreme Court's Zadvydas ruling prevents the indefinite detention of certain aliens with final orders of removal. While terrorists and other especially dangerous individuals may be exempt from the ruling, many other serious criminals and other threats to public safety must be released under Zadvydas.
Page 26 PREV PAGE TOP OF DOC
Claims for protection under the Convention Against Torture, in almost all cases, are adjudicated by immigration judges, with an appeal to the Board of Immigration Appeals (BIA). Although the Homeland Security Act transferred the functions of the former Immigration and Naturalization Service to the Department of Homeland Security, effective March 1, 2003, that law also provided that the Executive Office for Immigration Review (EOIR), including the immigration judges and the BIA, remains in the Department of Justice, under the authority of the Attorney General. The Bureau of Immigration and Customs Enforcement (BICE) attorneys represent DHS in these immigration proceedings before immigration judges and the BIA.
As a result of the strict standards articulated in the regulations, the number of individuals who have received withholding or deferral of removal based on the Convention Against Torture is small. In the four years since the regulations went into effect, the available data indicates that there have been approximately 1,700 grants of withholding or deferral of removal based on the Convention Against Torture. It is also important to emphasize that the number of criminal aliens who have received Convention Against Torture protection is small. Of the approximately 1,700 aliens who received withholding or deferral of removal under the Convention Against Torture, 611 were aliens who were charged as removable because they had committed crimes. Notably, half of the 611 were given withholding of removal, which indicates that they could not have been subject to one of the criminal or security-related bars to withholding under the Act.
These statistics support our belief that there has been, overall, a very measured and careful approach to adjudicating Convention Against Torture cases. We attribute these relatively low numbers to the strict eligibility standards set forth in the regulations which place a heavy burden on the applicant to establish not only the likelihood of torture, which is itself narrowly defined, but that such harm would occur at the hands of or with the acquiescence of government officials. The Department of Homeland Security continues to monitor the development of case law in this area and to argue for a proper reading of the definitions and requirements set out in the regulations. Thus far, DHS believes that the immigration judges and the BIA have generally adhered to these strict requirements. There have been instances where DHS attorneys perceived too broad of an interpretation of the Convention by courts and successfully appealed to the BIA. Attorney General Ashcroft has decided in a series of cases that aliens must meet a heavy burden of proof, providing evidence that specifically establishes an individualized risk of the specific intent of government actors to engage or acquiesce in torture.(see footnote 3) Moreover, the BIA has also generally read the Convention Against Torture requirements narrowly. For example, in Matter of J-E- the BIA held that there was no evidence to show that the substandard conditions of Haitian prisons equated with government sanctioned torture.(see footnote 4) Thus, in the first four years of implementation we have found that the regulatory provisions have been narrowly construed, leading to a relatively small number of cases for which torture protection was granted.
Page 27 PREV PAGE TOP OF DOC
TOOLS AVAILABLE TO ENSURE BALANCE IS MET
Because the obligation to refrain from removing an alien who faces torture is absolute, we have always been mindful of the fact that there would be situations where criminal aliens ineligible for other forms of immigration relief or protection might qualify for Convention protection. The Convention does not require that such aliens remain in the United States indefinitely and does not require that they be released from custody. The Convention Against Torture regulations provide a range of options for handling criminal and national security cases. An alien who has been given protection pursuant to the Convention Against Torture cannot be removed to the country where he would more likely than not face torture, but may be removed to a third country. If no third country will accept the alien, he may still be removed if the Secretary of Homeland Security credits assurances, received by the Secretary of State from the government of the country where the alien will be returned, that the alien will not be tortured.(see footnote 5) While we reserve the use of diplomatic assurances for the most sensitive of cases, we have returned two individuals to their countries based on assurances that they would not be tortured. We continue to consider other cases as appropriate.
Moreover, the two-tiered system for granting torture protection ensures that those individuals who are ineligible for withholding of removal based on criminal or other acts receive the minimum amount of protection necessary to comply with our international obligations. Deferral of removal is a much narrower form of protection from removal than asylum, statutory withholding of removal, or even withholding of removal under the Convention Against Torture. Deferral does not confer any lawful or permanent immigration status on the alien and the alien may be removed to another country at any time. Deferral of removal is also subject to an expeditious method of termination in the case of changed conditions affecting the alien's likelihood of torture. Upon the submission by BICE of evidence relevant to the possibility of torture an Immigration Judge must hold a hearing in which the burden is on the alien to establish anew that he or she continues to face torture upon return. We are currently reviewing cases from several countries in which recent changes in conditions may affect the likelihood of torture. The Department's commitment to safeguard our communities requires that we take an aggressive review of these cases involving criminal aliens to determine whether we can remove any of these individuals while abiding with our Convention obligations. We anticipate that the termination process will allow us to remove protection when it is no longer warranted.
Page 28 PREV PAGE TOP OF DOC
IMPACT OF ZADVYDAS
Zadvydas has limited our ability to detain certain aliens who have orders of removal. During the statutory removal period, detention is mandatory for certain criminal aliens and terrorists.(see footnote 6) Upon expiration of the statutory removal period, the Department has discretionary authority to continue to detain certain aliens subject to an administratively final order.(see footnote 7) Anticipating the potential conflict between security concerns and a grant of protection under the Convention, Congress specifically noted in the legislation implementing Article 3 that the existence of torture protection should not be read to limit the Government's detention authority.
Nonetheless, the possibility of continued detention for most individuals granted deferral has been affected by Zadvydas, a decision issued by the Supreme Court subsequent to promulgation of the Convention Against Torture regulations. The Supreme Court held that detention is permissible under section 241(a)(6) of the Immigration and Nationality Act when removal is reasonably foreseeable, or when there are special circumstances that justify continued detention. Once an order of removal is administratively final, the Court found that the alien's detention is ''presumptively reasonable'' for up to six months in order to accomplish removal. Thereafter, if the alien provides ''good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future,'' the government must rebut the alien's showing or establish special circumstances in order to continue to hold the alien in detention.
After the Supreme Court's Zadvydas decision, the existing post-order custody review regulations that provide for automatic and periodic review for aliens who remain in detention upon expiration of the statutory removal period were revised and supplemented. The new regulations added provisions governing custody review and determination of the likelihood of the alien's removal. Under the provisions of 8 C.F.R. 241.13, custody reviews are initiated by the alien's request for release, accompanied by his assertion and support for his belief that his removal cannot be effected in the reasonably foreseeable future. Such reviews are conducted only after the six-month period of ''presumptively reasonable'' detention has expired. A specially trained Headquarters Unit of BICE's Office of Detention and Removal conducts the review procedures. In order to be considered for release or parole, the alien must first demonstrate that he has fulfilled his statutory obligation to make a good faith effort to secure a travel document. Upon consideration of all the evidence, BICE issues a written decision either continuing detention or ordering the alien released. BICE will release or parole the alien under specified conditions of release if it determines that the alien has complied with his statutory obligation to obtain travel documents, but despite the alien's and the government's best efforts, his or her release is not reasonably foreseeable.
Page 29 PREV PAGE TOP OF DOC
This process applies equally to any deportable alien who cannot be removed, including those granted withholding or deferral of removal. It should be noted, however, that the 6th and 9th Circuits Courts of Appeals have expanded the Zadvydas decision to include inadmissible aliens; that is, aliens who have not gained initial admission into the United States.(see footnote 8) Consequently, in all but the most serious cases, a criminal alien who cannot be returned—regardless of the reason—may be subject to release after six months. In such cases, BICE must rely upon conditions of release to appropriately monitor those released.
The Zadvydas court suggested, however, that there are circumstances involving particularly dangerous individuals, terrorists, or others whose special circumstances could warrant continued detention. This is reflected in the post order custody regulations. The regulations authorizes the Government to continue to detain aliens-even where their removal is not foreseeable—who present foreign policy concerns or national security and terrorism concerns, as well as individuals who are specially dangerous due to a mental condition or personality disorder, even though their removal is not likely in the reasonably foreseeable future. For instance, terrorists may be detained under the provisions of 8 C.F.R. 241.14(d) regardless of whether the final removal order is based on terrorist activity. Decisions to continue detention in such cases, however, must be based on information indicating that the alien's release would pose a significant threat to the national security or a significant risk of terrorism that cannot be adequately addressed through conditions of release. Similarly, 8 C.F.R. 241.14(g) allows DHS to seek approval from an immigration judge for the continued detention of individuals who are likely to engage in future acts of violence due to a mental condition or personality disorder, where there are no conditions of release that can reasonably be expected to ensure the safety of the public and such individual is likely to engage in future acts of violence. However, the operation of the regulation generally relies on psychiatric evidence attesting to mental conditions and requiring predictions based on past conduct.
Page 30 PREV PAGE TOP OF DOC
In addition, the exception for continued detention does not apply to many who could endanger the public. For example narcotics traffickers or even violent criminals who have no demonstrated mental disease or defect would not generally fall under a Zadvydas exception. Furthermore, persecutors or human rights abusers would generally not fall under the Zadvydas exceptions, thus there are instances where the government is forced to release aliens who have final orders of removal, though they may pose grave threats to the public.
Thus, Zadvydas has limited DHS' ability to maintain custody of certain aliens who have been granted Convention Against Torture protection and cannot be removed, but may pose a danger to the community. Though statistically this group amounts to less than one percent of criminal aliens who have been released under a final order since 1999, the group is of significant concern to DHS. This is especially true in light of Congress's intent to preserve the Government's custody authority over aliens granted Convention Against Torture protection, as expressed in its 1998 legislation implementing Article 3 of the Convention.
There is little question that enforcing the United States' Convention Against Torture obligations while ensuring the public safety is a challenge, but such challenges are inherent in balancing the interests of a free and open society. The Department of Homeland Security is committed to ensuring the proper balance between our Convention obligations and our mission to make our communities safe, within the limits imposed by Zadvydas. The Department will continue to argue before immigration judges and the BIA and the Department of Justice will continue to argue before the federal courts for the proper application of the Convention to ensure that we meet our obligations. While we have seen many positive signs during the short period of time in which the Convention was implemented, we will continue to monitor the Convention's application to ensure that the proper balance between protection and safety is being achieved.
Page 31 PREV PAGE TOP OF DOC
Thank you again for allowing me to offer these comments. I look forward to your questions.
Mr. HOSTETTLER. Mr. Rosenbaum, you are recognized for 5 minutes.
STATEMENT OF ELI ROSENBAUM, DIRECTOR, OFFICE OF SPECIAL INVESTIGATIONS, U.S. DEPARTMENT OF JUSTICE
Mr. ROSENBAUM. Thank you. Chairman Hostettler, Ranking Member Jackson Lee, and Members of the Subcommittee, I am pleased to accept Chairman Sensenbrenner's invitation to appear before you today to address two questions concerning the application of the Torture Convention to foreign nationals who have participated in war crimes, torture, and other human rights violations prior to arriving in the United States.
If I may say, it is a particular pleasure to be here, since our office which was created in 1979 was created largely at the behest of this Subcommittee. It has been 23 years—24 years, and I hope that the Subcommittee feels that its child has grown up properly.
I would like to preface my statement by noting the Administration's commitment to the Torture Convention, a noble international undertaking to protect human life and human dignity. As Mr. Verdery noted, just 2 weeks ago the President urged all governments to join with the United States in prohibiting, investigating, and prosecuting all acts of torture.
Page 32 PREV PAGE TOP OF DOC
I would also note that my office, the Office of Special Investigations, which handles the World War II cases, has had only limited experience with the Torture Convention. Since my office's creation in 1979, we have won the denaturalization of 71 Nazi persecutors and we have accomplished the removal to date of 57 such persons. With the assistance of the former Immigration and Naturalization Service, now in effect part of the Department of Homeland Security, OSI has prevented more than 160 Axis persecutors—both European and Japanese perpetrators—from entering the United States. We have 20 of these World War II cases currently in litigation in courts throughout the United States.
To date, however, only one OSI respondent has filed a claim under the Torture Convention. OSI attorneys have litigated some of the most complex immigration cases handled by the Government, all of which involve allegations that the defendant assisted in Nazi-sponsored acts of persecution—in human rights violations, if you will. Based on that experience, I believe that we can offer a useful perspective on the issues that CAT can raise when the Government seeks to remove persons who participated in war crimes, torture, and other human rights abuses.
First, the bar on removal made possible through domestic implementation of the Torture Convention is a stronger protection than earlier provisions of U.S. immigration law. The laws dealing with political asylum and withholding of removal, for example, provide that certain malefactors are statutorily barred from eligibility, including persons who assisted in persecution, persons who committed serious crimes outside the United States, persons who have been convicted in this country of serious crimes, and persons who are considered a danger to United States national security.
Page 33 PREV PAGE TOP OF DOC
Moreover, persons who are found to be removable on grounds that they assisted in Nazi persecution—the cases my office handles—those persons are automatically barred from virtually all forms of relief or protection from removal available under the Immigration and Nationality Act.
In contrast, of course, there are no exceptions to protection from removal under the Torture Convention. A person who has committed the most heinous acts, including Nazi crimes and acts of terrorism, or a person who constitutes a grave danger to the national security of the United States is eligible for protection under the Convention Against Torture if that individual can prove—and the burden is on that individual—prove that he or she will more likely than not be tortured in the designated destination country. The strong policy reflected in the implementation of the Torture Convention is that no person, regardless of his or her past conduct, should be deported to another country to face torture.
Second, while CAT claims have been exceedingly rare in the World War II cases to date—as I said, we have seen just one—the situation is likely to be different with removal actions involving so-called modern-day human rights violators, the subject of the legislation that was referenced in the letter of invitation. The majority of my office's cases were litigated before protection under the Torture Convention was available under U.S. law, and recent OSI defendants have generally refrained from filing CAT claims, presumably because the Government is, after all, seeking to remove them to countries in Europe—countries that are signatories to the Torture Convention, and where torture is prohibited and generally quite rare.
However, some modern-day human rights violators are likely to be nationals of countries that are politically unstable, where torture is more likely to be used and legal protections against torture are not always available. Under those circumstances, some modern-day human rights violators may be able to put forward a colorable claim of prospective torture.
Page 34 PREV PAGE TOP OF DOC
Third and finally, one can expect that alleged human rights violators will file frivolous claims under the Torture Convention for purposes of delaying their ultimate removal from the United States. Meritless claims and arguments are routinely advanced in removal proceedings by aliens who have little or no prospect of avoiding removal. This has been true in removal cases generally, and it has certainly been true in OSI's World War II cases. Obviously, it takes time to litigate these frivolous claims, a process that delays the removal of the aliens.
The Government's experience suggests that while CAT claims are likely to be filed in many removal cases brought against torturers and other human rights abusers, most such claims will fail. As Mr. Verdery mentioned, in fiscal 2002, immigration judges adjudicated 17,302 CAT claims, of which only 558, or just over 3 percent, were granted. However, 75 of these aliens were granted CAT-based deferral of removal after being judged ineligible for withholding of deportation on one of the four grounds that I mentioned a moment ago.
I would like to thank the Subcommittee for the opportunity to present this testimony, and I would be pleased to respond to any questions that the Subcommittee may have.
Mr. HOSTETTLER. Thank you, Mr. Rosenbaum.
[The prepared statement of Mr. Rosenbaum follows:]
PREPARED STATEMENT OF ELI ROSENBAUM
Chairman Hostettler, Ranking Member Jackson Lee, and Members of the Subcommittee, I am pleased to have the opportunity to appear before you today concerning the application of the United Nations Convention Against Torture or Other Cruel, Inhumane, or Degrading Treatment or Punishment (commonly known as the Convention Against Torture (''CAT'')) to foreign nationals who have participated in war crimes, torture, and other human rights violations prior to arriving in the United States.
Page 35 PREV PAGE TOP OF DOC
My name is Eli M. Rosenbaum, and I am the Director of the Office of Special Investigations (OSI) in the Justice Department's Criminal Division.
I would like to preface my statement by noting the Administration's commitment to the Torture Convention. On June 26, 2003, United Nations International Day in Support of Victims of Torture, the United States joined in global commemorations of the date in 1987 when the CAT came into force, and President Bush urged all governments ''to join with the United States and the community of law-abiding nations in prohibiting, investigating, and prosecuting all acts of torture and in undertaking to prevent other cruel and unusual punishment.'' The Department of Justice echoes this commitment.
I would also note that OSI has had only limited experience with the Torture Convention. As the Subcommittee is aware, OSI was created in 1979 and was charged by the Attorney General with the task of investigating and taking legal action to denaturalize and deport persons who participated in acts of persecution sponsored by Nazi Germany or its allies during World War II. The unit's creation was largely a response to Congressional dissatisfaction with the Government's performance in the Nazi cases, nearly all of which had been lost in the courts, with the result that just two Nazi criminals had been removed from the United States in the three-and-a-half decades immediately following the end of World War II. Over the past 24 years, OSI has won the denaturalization of 71 Nazi persecutors and has accomplished the removal of 57 such persons. Twenty Nazi cases are before the courts at this time. Through a border control watchlist program, OSI, with the assistance of personnel of the Immigration and Naturalization Service, now serving with the Department of Homeland Security, has prevented more than 160 suspected Axis persecutors from entering the United States. To date, however, only one OSI respondent has filed a claim under the Torture Convention. That application was denied by an immigration judge earlier this year—without a hearing—and the case is currently on appeal.
Page 36 PREV PAGE TOP OF DOC
Notwithstanding OSI's limited experience to date with CAT, I believe that we can offer a useful perspective on the difficulties involved in obtaining the removal of persons who participated in war crimes, torture, and other abuses. OSI's prosecutors have litigated some of the most complex immigration cases handled by the Justice Department over the past two decades, and all of OSI's cases have required the Government to prove, by clear and convincing evidence, the respondent's participation in Nazi crimes against humanity, specifically in acts of persecution committed against Jewish civilians and other victims during World War II. Based in part on that experience, I can offer several observations.
First, the Convention Against Torture, as ratified and implemented, does not contain the bars to relief applicable to asylum and statutory withholding of removal. The statutes dealing with political asylum and withholding of removal, for example, provide that certain malefactors are statutorily barred from eligibility, including persons who assisted in persecution, persons who have committed serious crimes outside the United States, and persons who are considered a danger to United States national security. The Convention Against Torture, as a mandatory form of relief, does not exclude these malefactors.
When Congress enacted the Holtzman Amendment in 1979 to provide for the exclusion and deportation of persons who had assisted in Axis-sponsored persecution, it provided that such persons were automatically barred from virtually all forms of relief or protection from removal available under the Immigration and Nationality Act, including asylum, withholding of removal, suspension of deportation, and cancellation of removal. Thus, OSI's cases have very rarely involved the litigation of any claim for relief or protection from removal.
Page 37 PREV PAGE TOP OF DOC
In contrast, there are no mandatory bars to protection under the Convention Against Torture. A person who has committed the most heinous acts—including Nazi crimes and acts of terrorism—or a person who constitutes a grave danger to the national security of the United States, is nonetheless eligible for protection under the Convention Against Torture if that individual can prove that he or she is ''more likely than not'' to be tortured in the designated destination country.
Second, while claims have been rare in the World War II cases to date, the situation is likely to be different with removal actions involving ''modern-day'' human rights violators. The Convention Against Torture did not enter into force with respect to the United States until November 20, 1994, and the pertinent provisions of Article 3 were not implemented in United States law until 1999. Thus, the majority of OSI's cases were litigated before protection under the Convention was available.
Defendants in recent OSI cases have generally refrained from filing CAT claims, presumably because the Government has sought their removal to countries in Europe that are signatories to the Convention and where torture is prohibited and rare, and where there is simply no credible reason to believe that any of those countries would inflict torture as punishment for actions taken on behalf of a long-defunct regime with which they either never clashed or with which they were last at war more than five decades ago. In contrast, some ''modern-day'' human rights violators are likely to be nationals of countries that are politically unstable, where torture is likely to be used and legal protections against torture are not available. These cases are, of course, handled by the Department of Homeland Security before the immigration judges and the Board of Immigration Appeals, and are litigated before the courts of the United States by the Civil Division's Office of Immigration Litigation.
Page 38 PREV PAGE TOP OF DOC
Under those circumstances, some ''modern-day'' human rights violators may be able to put forward at least a colorable claim of prospective torture, and it will not be possible for an immigration judge to dismiss the claim without a hearing (as was done in the OSI case I mentioned earlier), particularly if the respondent is a national of a country in which one persecutory regime has been replaced by another set of inhumane leaders.
Third, one can expect that many alleged human rights violators will file frivolous claims under CAT for the purpose of delaying their ultimate removal from the United States. Meritless claims or arguments are routinely advanced in removal proceedings by aliens who have little or no prospect of avoiding removal. This has been true in removal cases generally, and it has certainly been true in OSI's cases. In our time-sensitive efforts to denaturalize and remove Nazi persecutors, OSI attorneys regularly must defend against frivolous challenges to the court's jurisdiction and respond to long-discredited legal defenses and arguments.
However, the Government's experience suggests that CAT claims are likely to be filed in many removal cases brought against torturers and other human rights abusers. In FY 2002, immigration judges adjudicated 17,302 CAT claims, of which 558, or just over 3 percent, were granted. Seventy-five of these aliens were granted CAT-based deferral of removal after being adjudged ineligible for withholding of deportation.
I would like to thank the Subcommittee for the opportunity to present this testimony, and I would be pleased to respond to any questions that the Subcommittee may have.
Mr. HOSTETTLER. Mr. Stein.
Page 39 PREV PAGE TOP OF DOC
STATEMENT OF DAN STEIN, EXECUTIVE DIRECTOR, THE FEDERATION FOR AMERICAN IMMIGRATION REFORM
Mr. STEIN. Mr. Chairman, Ranking Member Sheila Jackson Lee, thank you very much for the opportunity to be here. We appreciate very much your leadership in holding this important hearing on what has got to be, in my over 40 times being invited to testify before this Committee, the most challenging set of conflicting and competing interests in the delicate—most delicate matters one could ever imagine.
FAIR naturally supports strong immigration controls. That is what we are all about. At the same time, we as an organization oppose terrorism and support the intentions and principles of the Convention Against Torture. Nevertheless, at the time the convention was adopted by the United States, the U.S. asylum system was overloaded and overburdened, and we do not believe that it was contemplated that the convention itself would provide an entirely separate and new avenue for would-be asylum claimants or would-be deportees to seek an exemption from removal.
And when the regulations were coerced, if you will, out of the Administration some years back, they set up a whole new set of standards which appear to be operating independently from any determinations made in the asylum proceeding, including adverse credibility determinations, which give us some concern about where exactly this is going. With the understanding that no one wants to see anyone sent back to torture of any kind, we are concerned that the actual rigid standards of the convention not only provide requirements that we have succor—provide succor or protection for Nazi war criminals, people who have committed mass murder, the gravest crimes against humanity, but at the same time actually inadvertently facilitate the actions of international criminal syndicates in organized crime operations that work in conjunction with host governments.
Page 40 PREV PAGE TOP OF DOC
So the couple of—two cases I want to just talk about very briefly in my testimony here is the Zheng case which came out of the Ninth Circuit a few weeks ago. The Ninth Circuit remanded back to the BIA, holding that this alien was eligible for CAT relief. Now, this claimant had actually been smuggled into this country by snakeheads. His allegation was that because he provided testimony to U.S. authorities to prosecute some of the smugglers, he would be tortured if sent back to China under the standard of official acquiescence, making the claim that the very loose-knit corruption that exists between local officials in Fujian Province and the smugglers gave rise to a very loose standard of proof that the alien had to meet to show that there was actual official acquiescence. Which we believe is far less rigid than what is applied by the standards of the treaty that there be some kind of approval in this acquiescence, that there be some greater nexus between the actual action of the private parties and what can be considered state actors.
So already the Ninth Circuit is widening dramatically the standards for what constitutes official torture, to include just about anybody who is being smuggled in through sophisticated organized crime syndicates that are Mafia-like in their organizations, that may also have interaction or collusion with official governments of one kind or another. Even in the most informal way.
The second case I would like to bring to your attention is not a public case. It was decided by the Board of Immigration Appeals October 25 in 2001. The case is a matter of Hamadi, In Re Hamadi. Hamadi was found to be an active member of the Mujaheedin, of the MEK. He was found not only to have committed and participated in a variety of acts associated with bombing embassies, et cetera, overseas; he was also formally determined to be a threat to U.S. national security by the Board of Immigration Appeals. He was given deferral of removal under the CAT convention and, so far as I know, is probably still in custody.
Page 41 PREV PAGE TOP OF DOC
Now, Mr. Chairman and Members of the Committee, when the CAT Convention was considered and negotiated, everyone assumed that the U.S. authority to detain undesirable aliens, or aliens deemed a threat to human rights and in other ways not desired to be released within the community, remained absolute owing to the long traditions of very high deference given to the executive branch in detaining removable or excludable aliens.
The Zadvydas case is a very troubling trend which we believe may continue as the Court reconsiders more of these cases, which if we do see erosion in the executive standards for detaining aliens, could mean that not only are we facilitating the undesirable operations of people who commit criminal operations and retaliate in organized crime syndicate-like fashion, we are actually allowing people to stay here who no one could possibly ever have intended for us to provide indefinite protection for.
So with that, I think I will end my—I have a variety of recommendations, which if I have time I could go through, but maybe we will do that during the Q and A.
Anyway just to close, I would like to say that this is an example of good intentions which sometimes have inadvertent consequences. Clearly the spirit of the intention of the convention is very important to protect. Nevertheless, based on past experience with these kinds of provisions, the way in which through various types of litigation, standards are loosened and relaxed beyond what anyone contemplated, we do believe the way the regulations are being interpreted now begins to become a real threat to public safety, and it is only a matter of time before somebody is released who is given CAT protection who we will regret was released for some time.
Page 42 PREV PAGE TOP OF DOC
So thank you very much for the opportunity to testify, and maybe I will review my specific recommendations later.
Mr. HOSTETTLER. Thank you, Mr. Stein.
[The prepared statement of Mr. Stein follows:]
PREPARED STATEMENT OF DAN STEIN
Mr. Chairman and members of the subcommittee, thank you for the opportunity to present the views of the Federation for American Immigration Reform (FAIR) on the difficult issues pertaining to U.S. implementation of the Convention against Torture (CAT). FAIR is a national, not-for-profit organization of concerned citizens nationwide promoting better immigration controls and substantial reductions in overall immigration for the benefit of all Americans. FAIR does not receive any federal grants, contracts or subcontracts. My name is Dan Stein, and I am FAIR's Executive Director.
Our interest in today's hearing relate to our concern that U.S. law promote substantial justice in its implementation of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. As a general proposition, our organization supports the intentions and goals of the Convention against Torture. This is an important treaty. Opposition to torture has long-standing support as part of our nation's founding principles as articulated in the Eighth Amendment to the Constitution of the United States. Nevertheless, even the best intentions can have unintended consequences. The United States has a well-developed system to entertain refugee and asylum claims. We cannot believe it was the intention of those drafting the convention to override the sovereign prerogative of any nation to rid itself of aliens judged a threat to public safety, security or the best interests of the nation.
Page 43 PREV PAGE TOP OF DOC
Mr. Chairman, FAIR testified on September 28, 2000 before this committee raising a variety of concerns, many of which have been borne out by subsequent events. The CAT was signed by the United States in 1988 and became effective for this country March 22, 1999. We argued then, and continue to argue, that CAT was not designed to create a new avenue for immigration relief that would allow people to avoid consequences associated with past bad behavior—including serious human rights abuses, serious criminal activity, persecution, violations of religious freedom, offenses against humanity, terrorism, genocide and torture. This is what current regulations provide.
The Senate Report accompanying treaty ratification (Senate Report 101–30) (1990) stated CAT's purposes as a treaty. There is no mention of the nation creating a new right of action for those unsuccessful in obtaining asylum under U.S. law. Rather, the organic purpose of CAT is to create modifications to each nation's criminal law to eliminate torture (in our case here in the U.S.) and provide a legal recourse for those who have suffered torture at the hands of state actors.
Evidence for this proposition can be found in the fact that CAT has no provision for exclusion of criminals and other serious human rights violators from its protection. As now interpreted by immigration courts, the convention and its implementing rules override provisions that would cause their removal. This is probably because CAT was not intended to become part of any nation's domestic immigration law procedures. Prior to CAT—and FAIR believed during deliberations leading up to the treaty—the existing rules under INA §241(b)(3) governing ''withholding of removal'' would cover torture claims while retaining ineligibility for those aliens who are aggravated felons or otherwise undesirable. We believe that was the prevailing view at the time. There was certainly no broad public debate while CAT was being deliberated in the Senate to suggest that this treaty would force a major rewrite of U.S. asylum and refugee law. I refer to my previous testimony for discussion of the deliberations leading to the current CAT regulations.
Page 44 PREV PAGE TOP OF DOC
Proponents of existing regulations view the Torture Convention as creating an absolute bar to refoulement for anyone who makes a torture claim, even if the person operated a death camp in World War II, ordered the mass murder of millions or sought to destroy an entire people. While this continues to be their position, the definition of torture is persistently sought to be expanded to include a variety of private acts claimed to be state action via the tenuous route of asserting these private acts took place via the ''consent or acquiescence'' of a public official. (To support our claim that the standard for official ''consent or acquiescence'' is expanding, I refer to recent federal appellate court decisions that have begun to assert that Congress did, in fact, intend to prevent us from removing criminal aliens or serious human rights abusers; in a recent case by one who claims to have been threatened abroad with violence by mafias, who the alien himself had previously hired as smugglers—so long as the local police in the native country are alleged as ''aware'' of such threats and fail to provide protection (Li Chen Zheng v. Ashcroft No. 02–70193, 9th Cir. June 18, 2003). See also Zubeda v. Ashcroft (No. 02–2868, 3rd. Cir. June 23, 2003) [adverse credibility determinations in asylum claims do not prejudice CAT claims on same facts; country condition reports by ''unofficial'' organizations are probative evidence for CAT withholding of removal; no requirement to show specific intent to inflict pain to qualify for CAT relief; grant of asylum is discretionary, but CAT relief is absolute and mandatory ].
Proponents of the absolute bar to refoulement claim that under CAT, the U.S. can detain these aliens indefinitely and/or prosecute them here under the ''universal jurisdiction'' provisions of the treaty that allow courts to assert extraterritorial jurisdiction over the torture offender as long as the offender is physically present within a territory of the United States when he is served (18 U.S.C. 2430A). Our understanding is that this new criminal cause has been asserted rarely if ever by the Department of Justice. And a recent Supreme Court case mentioned below suggests there are constitutional limits on the detention of removable or excludable aliens.
Page 45 PREV PAGE TOP OF DOC
Nevertheless, the Convention—whether intended or not—has created an entirely new vehicle for aliens to try to delay deportation. Torture claims now operate as another ''bite at the apple'' after asylum and withholding remedies have been exhausted. As I say, the organic purpose of CAT was to ''make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world.'' (Convention Against Torture, Preamble, 23 I.L.M. 1027). A noble goal in the abstract, but in the implementation, the U.S. appears to have tied its hands in, we expect, unintended ways. The U.S. appears now to be unable to remove people who just about everyone would like to see removed.
The INS parenthetically mentioned this massive loophole when the proposed regulations for CAT were published on February 19, 1999 (Federal Register):
''[T]here are some important differences between withholding of removal under section 241(b)(3) of the (Immigration and Nationality) Act and Article 3 of the Convention Against Torture. First, several categories of individuals, including persons who assisted in Nazi persecution or engaged in genocide, persons who have persecuted others, persons who have been convicted of particularly serious crimes, persons who are believed to have committed serious non-political crimes before arriving in the United States, and persons who pose a danger to the security of the United States, are ineligible for withholding of removal. See INA section 241(b)(3)(B). Article 3 of the Convention Against Torture does not exclude such persons from its scope.'' (Emphasis added.)
To reiterate, we seriously doubt that the Senate, when it ratified CAT, intended to create a whole new category of immigration relief for those ineligible for asylum or withholding of deportation. For that reason we strongly support legislative efforts to correct the overly broad and abusive interpretation of CAT protection.
Page 46 PREV PAGE TOP OF DOC
THE MAGNITUDE OF THE PROBLEM
Mr. Chairman, when we testified on the need to correct the misuse of the CAT protection in 2000, we indicated that we were concerned that INS interpretation had created a loophole that would allow an increasing number of serious human rights abusers and criminals to remain in the United States. Currently available data bears out that assessment.
Recent data from the Executive Office of Immigration Review (EOIR) records 683 cases between 1998–02 in which CAT protection was asserted for aliens found deportable in cases involving criminal charges. All these cases were sent to the Board of Immigration Appeals (BIA). Although these cases cannot be tracked with precision, it appears that only about 150 of these individuals have been removed and only about 30 are still detained, implying that around 500 of these otherwise removable aliens may have been released back into U.S. society. It goes without saying that the fact that these individuals were found removable and their cases involved criminal activities or human rights abuse means that the likelihood of danger to the American public is increased by the release of these aliens. I would point out that this is occurring just after a period when the Executive Branch had made deportation of criminal aliens its ''highest'' public enforcement priority.
Another problem with the CAT protections is that the claim can be asserted after other claims for relief have failed. Because this protection may be sought following the full consideration of protections for an alien in removal proceedings, including eligibility for asylum, it offers a subsequent opportunity to overturn or delay removal. This is attractive as a delaying tactic. Further, the lack of specificity regarding the scope of CAT protection has invited appeals to the BIA seeking CAT relief in cases of spousal abuse, genital mutilation, child abuse, etc. The United States does not and should not condone any of these practices, and yet these claims are reminiscent of ''social status group'' claims persistently made under asylum law. As much as we disapprove of these practices—indeed in some cases they shock our conscience—they do not involve state practices of torture and should be defined within the BIA appeal system by legislative clarifying language to discourage such claims.
Page 47 PREV PAGE TOP OF DOC
Let's look more closely at how ''torture'' is defined: The language of Article I of the Convention is clear. Torture is defined as ''any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity [emphasis added]. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.'' We are already seeing the definition of torture being expanded by the appellate courts while CAT claims are being considered as claims entirely separate from asylum claims from the same claimant.
The Senate, in consenting to the U.S. adoption of the Convention, expressed its understanding that, for an act to be performed with the ''acquiescence'' of a public official, the public official must ''prior to the activity constituting torture, have awareness of such activity and thereafter breach his legal responsibility to intervene to prevent such activity.'' (136 Cong. Rec., supra note 4, at S17491–92.)
Demonstrating the type of cases that suggest the need for Congressional action are two in which the BIA granted CAT relief from removal to persons implicated in murders. In one, a Gambian national (Matter of Kebbem—BIA 2000), who had fled his country after murdering a man at a soccer game, was judged more likely than not to be tortured by government officials if he were returned to the Gambia on the basis of a State Department country report finding that the government had a reputation for physically abusing detainees held for political and security offenses. In another, an Uzbek national (Matter of Gaziev/Gazieva—BIA 2002) who was implicated in the 1994 Dendro Park shootout, a notorious public mass killings that left five dead in Uzbekistan, was also granted CAT protection. The BIA found that the lead respondent and his family would be more likely than not to be tortured to obtain confession regarding his involvement in the slayings. In the case of the Gambian, it appears from information provided by the Department of Homeland Security that he has since chosen to return voluntarily to Gambia, thereby belying his earlier assertion of fear of torture.
Page 48 PREV PAGE TOP OF DOC
As is the case with many asylum claims, our concern persists over the methodology used for finding that an alien has a well-founded fear of persecution or torture: we have consistently called attention to the process's reliance on generic background information, like the State Department country reports and other documents often compiled by biased sources, rather than being based on objective documentary information or evidence.
There are limits to the utility of Country Condition reports. Experience with the return of Cubans to Cuba provides a reality check on such assessments. It was long alleged by advocates for admitting all Cubans who escaped the island that any Cubans returned to Cuba would be imprisoned and abused. Following the policy shift by the Clinton Administration in the mid-1990s to return Cubans intercepted at sea to Cuba, State Department officials and international organizations monitoring the status of returned Cubans established that the returned Cubans were not subjected to mistreatment. This demonstrates the gap between the rhetoric of possible persecution used to support a liberal admission policy and the practical reality revealed by experience. As in the case of asylum claims, it also exposes the very real risk of fraud.
Mr. Chairman, we believe Congress needs to intervene to further clarify the scope of remedies available under CAT. The Foreign Affairs Reform and Restructuring Act (FARRA) of 1998 implemented the so-called ''nonrefoulement'' provisions of the Convention Against Torture (8 U.S.C.S. §1231 note). That legislation specifically called for the exclusion from CAT protection of criminal aliens and serious human rights abusers to the maximum extent consistent with the Senate's conditions on ratification of the Convention (FARRA §2242(c)). The Secretary of Homeland Security is authorized to terminate deferral of removal under CAT upon receipt of diplomatic assurances obtained by the Secretary of State that the alien would not be tortured if removed, or if an immigration judge finds changed circumstances (8 C.F.R. 208.18(c), 208.17(d)).
Page 49 PREV PAGE TOP OF DOC
Despite such clear direction from Congress that CAT be applied sparingly, restrictively, and so as to induce compliance with humanitarian norms by foreign states, we have seen the administrative agencies and the Ninth Circuit move recklessly to interpret the Convention in the broadest sense, as an immigration program for highly undesirable aliens, with no indication that grave and fully documented abuses of human rights have been reduced or discouraged in any way.
Building an increasingly expanding exemption from removal for illegal aliens, especially aliens involved in criminal activities, on a system where there is little if any objective criteria to guide informed decisions, as has been done with the CAT screening criteria, is unfair both to the adjudications system and to the American public. Most incomprehensibly, it rewards human smugglers, torturers, and other serious abusers, by encouraging the very traffic it purportedly was intended to curb.
CORRECTING THE PROBLEM
The option of continuing to detain removable aliens until such time as removal can be effectuated has been eroded by the 2001 U.S. Supreme Court ruling in Zadvydas v. Davis (533 U.S. 678), holding that removable aliens may not be held indefinitely. The erosion in the Attorney General's authority to detain removable aliens has changed the entire framework for analyzing the impact of CAT on our immigration rules. If the U.S. loses the option of indefinitely detaining criminals and human rights abusers, this country must make a more vigorous effort to remove these people quickly. There are two avenues by which Congress could restore protection to American society from the threat from foreign criminals who otherwise are likely to be released under the CAT provisions.
Page 50 PREV PAGE TOP OF DOC
1. The CAT responsibilities assumed by the United States were not self-executing, as the Senate stipulated in its advice and consent, Congress thus has the authority for specifying the criteria for the CAT's implementation. It would be our preferred option for Congress to specify that CAT protections are not absolute, and do not apply to serious criminals and human rights abusers. More generally, we would like to see claims brought under CAT reintegrated within the asylum and withholding of removal process and considered within the same legal claim. Further, any adverse credibility determinations made during the asylum process should also operate to bar a CAT claim. In conjunction with this approach, the Department of State should be encouraged to obtain commitments from the home country that a returned alien will not be subject to torture, or to attempt to find safe third countries willing to allow the alien(s) to enter. Where torture claims are based on claims of official acquiescence in torture, the standard of proof must be raised and the nexus between state action and private actors must be better defined. Finally, the U.S. should bar general immigration from any country that refuses to guarantee the safety and security of their nationals returned from the United States.
2. To prevent the alien from being released back into American society, the United States could assume responsibility for obtaining evidence from the home country about the crimes committed by the individual and effecting prosecution in the United States for those crimes. This, although possible under The Torture Victims Protection Act (18 U.S.C. 2340A), would involve an onerous assumption of new investigatory and prosecutorial responsibilities for the U.S. government. The downside of this approach is that the U.S. taxpayer will be absorbing tremendous costs associated with prosecuting people for crimes not committed in this country or affecting citizens or nationals of the United States.
Page 51 PREV PAGE TOP OF DOC
The trend in expanding the definition of who is a member of a ''particular social group'' and in adding new categories of beneficiaries, as was done by Sec. 601 of IIRAIRA, has already put an unfair and unmanageable burden on the asylum/CAT adjudication process.
Mr. Chairman, our view of the problems that have arisen under administration of the CAT protections has not changed from what we already saw as a troubling trend in 2000. As we said at that time, ''For those who have been barred from relief by the aggravated felony rules, the CAT provides one more ''bite at the apple.'' While many of those claims may have merit, our concern is that over time, advocates will work to broaden the CAT definitions to create an ever-widening set of immigration loopholes. This is based on plenty of experience in the field. We are concerned 1) that many aggravated felons will be successful in remaining in the country in ways never intended or foreseen under asylum law, and 2) that the CAT will become the basis for expanding the definition of ''torture'' in new and novel ways that will include virtually all forms of regressive cultural and domestic practices where it can be alleged there is no modern state compliance with Western norms of civil protections.'' Since 1999 we have witnessed just such an undesirable and troubling development in the legal definition of ''acquiescence'' to torture.
The subsequent events, court rulings and the new data cited above indicate that our earlier assessment was correct. If Congress does not act, it is clear that the problem will expand further, that undesirable and dangerous aliens who illegally enter the United States will be harder to remove, that trafficking will become more violent, less risky, and more profitable, and that the American public will be placed at unnecessary risk.
Mr. Chairman, we encourage you and the members of this Subcommittee to initiate legislation that will limit the scope of CAT protection so that perpetrators of serious crimes and serious human rights abuse are brought to justice. At the same time, we urge that the scope of CAT protections be defined to clarify what is ''state acquiescence'': this term should be clarified to insure it does not include actions by private persons merely operating under a generalized condition of civil violence or organized criminal activity.
Page 52 PREV PAGE TOP OF DOC
Mr. Chairman, this is an extremely difficult and challenging subject. We all want to be sensitive to the very real threats that exist for those who may be subject to some form of torture. As in all areas of public policy, this one requires a balancing of interests. FAIR works to assert the general interest of effective immigration controls, and I hope my testimony has adequately reflected that balance.
Thank you again for the opportunity to testify before the committee. I would be happy to answer any questions you or any other member of the subcommittee may have.
Mr. HOSTETTLER. Ms. Germain.
STATEMENT OF REGINA GERMAIN, GEORGETOWN UNIVERSITY LAW CENTER
Ms. GERMAIN. Thank you, Chairman Hostettler and Ranking Member Jackson Lee and Members of the Committee. I very much appreciate the opportunity to testify before you today, and I am honored by this opportunity.
I appear before you today to defend a fundamental principle of human rights law, a principle that no human being should be or deserves to be tortured; not here, not anywhere. There are no exceptions. Torture can never be justified or condoned by the United States. It is a heinous act, and it is recognized as such by the world community. And in an effort to eliminate torture and prosecute torturers, over 150 countries of the world have signed the United Nations Convention Against Torture, including, of course, the United States.
Page 53 PREV PAGE TOP OF DOC
Since the Convention Against Torture has been implemented in the United States, only a small number of individuals have benefitted from the protection. It is an extraordinary remedy, used only in the direst of circumstances, and according to the statistics issued by the Executive Office for Immigration Review, between 1999 and 2002, only 339 individuals who were found ineligible for asylum or withholding of removal because of criminal grounds have been found to be eligible for deferral of removal. So I am focusing on a different number than other—the Members of the Committee have, and other panelists, but I think the key number to look at in these statistics is the number 339.
It is not and has never been an avenue for permanent residency, the Convention Against Torture relief. Unlike asylum, individuals granted Convention Against Torture relief have no right to remain permanently in the U.S. In fact, I would say that deferral of removal under the Convention Against Torture is the most precarious and restricted immigration relief under the Immigration and Nationality Act, but it has saved lives and it has prevented torture.
This morning I would like to address five points regarding the Convention Against Torture relief for your consideration.
First and foremost, barring human rights abusers or serious criminals from protection under Article 3 would violate U.S. obligations under the convention. Article 3 contains no exceptions or limitations. The drafters of the Convention Against Torture—and the U.S. was involved in the actual drafting of the convention—the drafters in their foresight recognized that torture is an evil that can never be condoned. The Senate also acknowledged this fact by adding no understandings or reservations regarding possible exceptions to the nonreturn provision. And I would disagree with my fellow panelists that the Senate never considered the possibility that this would be a form of relief, because the Senate actually uses the same—imposed the same standard of review for Convention Against Torture relief that is used for withholding of removal. It used very similar language, more likely than not standards, so I would say that the Senate did consider that it would be another means of seeking relief within the U.S..
Page 54 PREV PAGE TOP OF DOC
In passing implementing legislation in 1999, Congress also recognized that any restrictions or limitations on relief under the convention had to be consistent with U.S. obligations under the convention, and only, quote, to the maximum extent consistent with the obligations of the United States under the convention could the U.S. exclude from protection persons who would otherwise be barred from withholding of removal, such as individuals who committed serious crimes or people who are security risks to the U.S..
And I would agree with Mr. Verdery that existing laws and regulations do adequately protect the American public from human rights abusers and serious criminals who benefit from protection under the convention. As the Supreme Court recognized, noncitizens who cannot be removed from the United States may continue to be held in detention under special circumstances, and that is from the Zadvydas v. Davis case. The regulations promulgated after Zadvydas allowed for the detention of people who are—noncitizens who are detained on account of security- or terrorism-related grounds or determined to be especially dangerous, that is, individuals who have committed one or more crimes of violence and are likely to engage in violence in the future. Also, the USA PATRIOT Act allows for the Attorney General to detain suspected terrorists even if they are granted relief from removal.
The convention also allows individuals to be returned to a home country if the U.S. obtains diplomatic assurances from that country. And the U.S. has used it in at least one case, a case reported in the Washington Post of a Saudi Arabian who was involved in the Khobar Towers bombing that killed 19 U.S. Customs Service men, and the U.S. sought assurances from Saudi Arabia that the individual would not be tortured upon return, and removed the individual from Saudi Arabia to face trial and possible execution if he was found to be guilty.
Page 55 PREV PAGE TOP OF DOC
It is unclear, however, whether the U.S. has a system in place to monitor whether diplomatic assurances actually prevent torture or whether the U.S. would seek the return of anyone who was subjected to torture despite diplomatic assurances.
My third point is that human rights abusers can and should be punished. The convention itself calls upon states to criminalize torture. We have a statute in our own country that criminalizes it, and to prosecute torturers found within their territories. If the U.S. feels that it lacks jurisdiction, it could and should send these violators to another country or jurisdiction that would prosecute the person. Allowing them to be tortured instead of punished only compounds the atrocities that they have committed by condoning torture as a legitimate form of punishment. Victims of torture want justice. They do not want to perpetuate the use of torture.
Fourth, deferral of removal is an extraordinary form of relief available only to individuals who prove it is more likely than not. And I would disagree with Mr. Stein. I would say that convention has been interpreted narrowly by our courts. It is not available to individuals who only present isolated instances of torture in their home country, as the Board of Immigration Appeals has found. It is not available to individuals fearing harm that does not rise to the level of torture such as inhumane prison conditions.
In addition, torture at the hands of a nongovernment actor does not meet the convention's definition of torture unless the Government acquiesces, consents; and the Senate in its foresight has found that acquiescence means that you have to have knowledge that torture is going to take place and breach a duty to intervene.
Page 56 PREV PAGE TOP OF DOC
And even when a person manages to obtain a grant of deferral, his status is a precarious one. It can be revoked in 10 days on new or even previously existing evidence. In a revocation hearing, the burden remains on the applicant to show that there continues to be a substantial risk of torture. And deferral only precludes the removal of the individual to the country where torture is likely, not to any other country.
Lastly, the Convention Against Torture has at times been a safety net for people whose crimes in the U.S. or abroad have been relatively minor. And during my time at the United Nations High Commissioner for Refugees here in Washington, we often came across a number of cases of individuals who should have been eligible for asylum relief, but for a minor crime were found ineligible, and the Convention Against Torture was their safety net.
In conclusion, I would urge you to continue the U.S.'s commitment to the principle that no human being should be or deserves to be tortured and to the U.S.'s commitment to eliminate torture worldwide. Thank you very much.
Mr. HOSTETTLER. Thank you, Ms. Germain.
[The prepared statement of Ms. Germain follows:]
PREPARED STATEMENT OF REGINA GERMAIN
Chairman Hostettler, Ranking Member Jackson Lee and Members of the Subcommittee:
Page 57 PREV PAGE TOP OF DOC
Thank you for the opportunity to testify today. I am honored. I have been practicing asylum and refugee law since my graduation from law school in 1989. In my very first asylum case, a member of Congress from Erie, Pennsylvania was instrumental in assisting my client and her family in obtaining protection in the United States. That member of Congress was Tom Ridge, now Secretary of the Department of Homeland Security. Needless to say, I quickly learned the important role Congress plays in the asylum process. When I was Senior Legal Counselor for the United Nations High Commissioner for Refugees from 1995 to 2001, the bars to asylum were greatly expanded. As a result, UNHCR advocated for changes to existing law and assisted asylum-seekers barred by minor criminal offenses in seeking relief under the Convention Against Torture (CAT), even before implementing legislation was passed. I have closely followed the implementation of Convention Against Torture relief since that time. I am the author of an Asylum Primer, published by the American Immigration Lawyers Association, which contains a comprehensive chapter on CAT relief. I am also a frequent presenter on the Convention Against Torture. During my recent fellowship at Georgetown University Law Center, I taught classes on asylum and the Convention Against Torture and advised students whose clients were seeking CAT relief, in addition to asylum.
I appear before you today to defend a fundamental principle of human rights law; the principle that no human being should be or deserves to be tortured. Not here, not anywhere. There are no exceptions. Torture can never be justified. It is a heinous act and recognized as such by the world community. In an effort to eliminate torture and prosecute torturers, over one hundred and fifty countries have signed the United Nations Convention Against Torture, including, of course, the United States. Last month, President Bush confirmed the U.S.'s continuing commitment to this principle when he stated: ''The United States is committed to the world-wide elimination of torture and we are leading this fight by example.'' President George W. Bush (June 26, 2003).
Page 58 PREV PAGE TOP OF DOC
The Convention Against Torture was signed by the United States on April 18, 1988, under the leadership of President Ronald Reagan. The Senate adopted its resolution of advice and consent to ratification on October 27, 1990 during the Presidency of George H. W. Bush. The treaty did not become effective until November 1994, one month after it was deposited for ratification with the United Nations Secretary General. In 1998, Congress enacted legislation to implementing Article 3, the non-return provision, of the Convention Against Torture without reservations. Regulations incorporating key provisions of the Convention, as well as the Senate understandings, were promulgated in 1999.
Since that time, only a small number of individuals have benefited from protection under the Convention Against Torture. It is an extraordinary remedy used only in the direst of circumstances. According to statistics from the Executive Office for Immigration Review, between 1999 and 2002 only 339 individuals found ineligible for asylum protection because of crimes, but in danger of torture upon return to their home countries, have benefited from the Convention Against Torture in the United States. It is not and never has been an avenue to permanent residency for human rights abusers or dangerous criminals. Unlike asylum, individuals granted Convention Against Torture relief have no right to permanent resident status. In fact, deferral of removal under the Convention Against Torture relief is the most precarious and restricted immigration relief under the Immigration and Nationality Act. But it has saved lives and it has prevented torture.
This morning I would like to address five points regarding Convention Against Torture relief for your consideration.
Page 59 PREV PAGE TOP OF DOC
First and foremost, barring human right abusers or serious criminals from the protection of Article 3 would violate U.S. obligations under the Convention Against Torture. Article 3 of the Convention contains no exceptions or limitations. The drafters in their foresight recognized that torture is an evil that can never be condoned. The Senate also acknowledged this fact by adding no understandings or reservations regarding possible exceptions to the non-return provision. In passing implementing legislation in 1998, Congress also recognized that any restrictions or limitations on relief under the Convention had to be consistent with U.S. obligations under the Convention. See Section 2242(c) of the Foreign Affairs Reform and Restructuring Act of 1998 (which provides that only ''to the maximum extent consistent with the obligations of the United States under the Convention [could the U.S.] exclude from protection [individuals barred from withholding of removal for security-related or criminal offenses]'').
Second, existing laws and regulations adequately protect the American public from human rights abusers and serious criminals who could benefit from protection under Convention Against Torture. The Supreme Court has recognized that non-citizens who cannot be removed from the United States may continue to be held in detention under ''special circumstances.'' Zadvydas v. Davis, 533 U.S. 678, 691 (2001). Regulations promulgated after the Zadvydas decision have defined these special circumstances to include cases of non-citizens who are ''detained on account of security or terrorism related concerns'' (8 CFR 241.14(d)) or ''determined to be especially dangerous,'' i.e. individuals who have committed one or more crimes of violence and are likely to engage in violence in the future (8 CFR 241.14(f)). Additionally, the USA PATRIOT Act allows the Attorney General to certify and detain a suspected terrorist even if such person has been granted relief from removal. See INA Section 236A(a)(3)(A).
Page 60 PREV PAGE TOP OF DOC
The regulations implementing the Convention also allow the U.S. to return an individual to his home country if the U.S. obtains diplomatic assurances from that country that the individual will not be tortured. See 8 CFR Section 208.18(c). The only case I am aware of involving diplomatic assurances occurred in 1999. As reported in the Washington Post, the U.S. deported Hani Abdel Rahim Sayegh, an individual suspected of involvement in the Khobar Towers bombing that killed 19 U.S. servicemen in Saudi Arabia The Saudi government provided assurances that Sayegh would not be tortured upon return and as a result he was returned to face trial and possible execution if convicted. It is unclear, however, whether the U.S. has a system in place to monitor whether diplomatic assurances actually prevent torture or whether the U.S. would seek the return to the U.S. of an individual who has suffered torture despite diplomatic assurances. I would urge this Committee to consider legislation to provide such safeguards.
Third, human rights violators can and should be punished. The Convention Against Torture itself calls upon States to criminalize torture and to prosecute torturers found within their territories. If the U.S. lacks jurisdiction to prosecute, it could and should send these violators to a country or jurisdiction that will prosecute and punish them, not return them to torture. Allowing them to be tortured instead of punished only compounds their atrocities by condoning torture as a legitimate form of punishment. Victims of torture want justice. They do not want to perpetuate the use of torture.
Fourth, deferral of removal under the Convention Against Torture is an extraordinary form of relief available only to individuals who prove it is more likely than not they would face torture by the government upon return to their home country. 8 CFR 208.16(c)(2). Case law and regulations show that Convention Against Torture relief has been interpreted narrowly. It is not available to individuals who present only isolated instances of torture in their home country. Matter of J-E-, 23 I&N Dec. 291 (BIA 2002). It is not available to individuals fearing harm that does not amount to torture, such as inhumane prison conditions. Id. Similarly, pain or suffering that is incidental to lawful sanctions does not rise to the level of torture, as long as those sanctions do not defeat the purpose of the Convention to prohibit torture. 8 CFR 208.18(a)(3). In addition, torture at the hands of a non-government actor does not meet the Convention's definition of torture unless the government acquiesces or consents to the torture. Matter of S-V-, 22 I&N Dec. 1306 (BIA 2000). Even when a person manages to obtain a grant of deferral of removal under the Convention Against Torture, his status is a precarious one. It can be revoked in 10 days based on new or even previously existing evidence. 8 CFR 208.17(d)(1) and Office of Chief Immigration Judge, Operating Policies and Procedures Memorandum No. 99–5 (May 14, 1999). In a revocation hearing, the burden remains on the applicant to show that there continues to be a substantial risk of torture if he is returned. 8 CFR 208.17(d)(3). Moreover, a grant of deferral only precludes the removal of the individual to the country where torture is likely, not to any other country willing to accept the individual.
Page 61 PREV PAGE TOP OF DOC
Lastly, the Convention Against Torture is, at times, a safety net for people whose crimes are relatively minor but who are, under current law, ineligible for asylum and withholding of removal. Over the course of my legal career, I have seen numerous instances of such cases. Here are three examples:
A teenager who threw a rock through a window of an abandoned apartment building and merely reached in the building (but took nothing) was convicted of burglary of a habitation and sentenced to five years. He served only nine months, but was found by an immigration