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The Year of the CAT: Recent changes to the law may offer immigrants further relief from removal
by Andrew Dutton

What is this article all about?

This is the first of two short articles I have written on the United Nations' Convention Against Torture (or 'CAT, for short). They will hopefully offer some guidance to immigration lawyers in interpreting the recent changes to the law, since there is little or no case law on CAT at the moment in the United States.

In this first article, I will explain how the law has changed. I will then explain what CAT is and how it can help immigrants. Finally, I will suggest how CAT cases could be decided in the United States by looking at the recent decisions of the United Nations.

How has the law changed?

As a result of section 2242(b) of the Foreign Affairs Reform and Restructuring Act 1998, CAT cases will now be heard by the immigration judges during the course of removal proceedings. Their decisions will be subject to review by the Board of Immigration Appeals. Such cases had previously been dealt with administratively by the INS after the applicant had exhausted all other remedies.

What is CAT?

CAT is an international treaty that was signed into law by a number of participating countries in the mid-1980s. The United States later became one of these countries. Broadly, CAT was intended to reduce the incidence of torture in the world. Article 3 prohibits the United States from removing the applicant to a country in which it is more likely than not that he would be subjected to torture. It is important to note that Article 3 does not prohibit the United States from removing that applicant to another safe country.

How does CAT relief differ from existing relief?

CAT provides two forms of relief against removal. These forms of relief are called 'withholding of removal' and 'deferral of removal'. They may be contrasted with the withholding of removal provisions which are already in place in U.S. law under the Geneva Convention.

Essentially, withholding of removal under CAT is a very similar kind of relief to that which is already provided by Article 33 of the Geneva Convention and Section 241(b)(3) of the Immigration and Nationality Act 1990. Both are mandatory forms of relief because each stems from a treaty obligation. Both have no filing deadline. The applicant will succeed in either type of case if it is likelier that not that he will suffer harm which constitutes a protected ground. Moreover, neither Article 33 nor CAT withholding of removal forms a basis for the applicant to adjust to permanent resident status, nor allows the applicant's family to claim derivative status.

But there are obvious differences, too. The harm envisaged by Article 33 withholding is a well-founded fear of persecution for one of the Geneva Convention reasons; the only harm envisaged by CAT is torture. The applicant for Article 33 protection must establish the threat of harm for a specific reason, which is not the case with CAT protection. However, that same Article 33 applicant need not show that his well-founded fear of persecution is serious enough to constitute a risk of torture.

It is also important to note that certain categories of people are ineligible for Article 33 protection, whereas all applicants will be protected in some way by CAT. Individuals who have committed non-political crimes or persecutory or terrorist acts certainly would be ineligible for the relief of withholding of removal under both Article 33 and CAT. But those individuals may still fall under CAT's deferral of removal provisions, provided that their return to a particular country would put them at risk of torture.

Deferral of removal is a much lesser form of protection. It does not confer any lawful immigration status on the applicant and does not even guarantee that the applicant will be released from detention. Deferral of removal is subject to review and may be terminated at any time when the risk of torture has diminished. In short, it is the ultimate last resort for any applicant.

CAT cases more obviously differ from asylum cases. Asylum is always a discretionary form of relief which will eventually lead to the successful applicant obtaining permanent resident status in the United States. The applicant's immediate family may also be granted derivative status. Like the withholding of removal provisions under Article 33 of the Geneva Convention, an application for asylum must always result from a well-founded fear of persecution for a specific Convention reason. In addition, certain criminals or persecutors or terrorists will also be ineligible for asylum. There is a time limit for asylum claims, which must be brought within one year.

How should CAT be interpreted?

The new types of relief are useful, but only if the applicant can show that he would be at risk of torture. The success or failure of a CAT claim will depend primarily upon what the Immigration Judge or the Board of Immigration Appeals considers to be 'torture'. Article 1 of CAT, as interpreted by 8 C.F.R. 208.18(a), provides a comprehensive definition. For the sake of clarity, I have summarised the contents of these provisions below.

Torture is an extreme form of cruel and inhuman treatment. It does not include lesser forms of cruel, inhuman or degrading treatment or punishment. For it to be torture, severe physical or mental pain and suffering must be caused to the applicant. Mental suffering must be prolonged to be severe and can, for example, result from the application of mind altering substances to the applicant or from the threat of the imminent death of the applicant or another.

The acts of torture must also receive some form of government authority. They should be inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. For these purposes, 'acquiescence' requires that the public official has had prior awareness of the torture and that he had breached his legal responsibility by failing to intervene to prevent it. These acts must be directed against a person in the public official's custody or physical control. Pain and suffering which arise as a result of legitimate punishment or from other lawful sanctions cannot constitute torture.

Finally, the acts of torture must be specifically intended to inflict severe pain or suffering upon the applicant. Intention may be inferred from the circumstances. For example, the applicant may have been tortured in order to make him reveal some important information An act that results in unanticipated or unintended severity of pain or suffering is not torture.

Will this definition work?

The definition of torture adopted by the United States is full and does not seem to be open to much interpretation. But the experience of the United Nations has shown that it may not be that easy to separate torture from the many lesser forms of inhuman or degrading treatment. In his First Report (U.N. Doc. E/ CN. 4/ 1986/ 15), the U. N.'s Special Rapporteur for the Convention Against Torture described the clear definition of torture as a 'grey area' in the law. In practice, a comprehensive definition will not necessarily lead to the clarity of concepts that are less than abstract. Hard and fast rules may prove to be either unfairly restrictive or immeasurably broad. It is extremely unlikely that Immigration Judges will simply state that one type of harm is torture and that another is not. Their general approach will be much more important.

How has the United Nations interpreted CAT?

To date, there have been four important cases decided by the U.N.'s Committee Against Torture. This Committee has jurisdiction when all the domestic remedies of an applicant's host nation have been exhausted. The cases are: Mutombo v Switzerland, Communication No. 13/1993, Khan v Canada, Communication No. 15/1994, Ismail Alan v Switzerland, Communication No. 21/1995, and Aemi v Switzerland, May 1997.

In Mutombo, the applicant was a citizen of Zaire who had unsuccessfully sought asylum in Switzerland. He claimed to have been the victim of governmental torture as a result of his military and political activities. He was able to prove that he had been detained by the governmental authorities, that he had left Zaire in a somewhat clandestine manner and that he had shown opposition to the regime. The applicant's counsel also provided extensive documentation relating to the general human rights situation in Zaire, notably in the form of the Special Rapporteur's reports.

The Committee found that there were substantial grounds for believing that the applicant would be in danger of being subjected to torture. It paid particular attention to objective evidence which showed 'the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights'. Moreover, as Zaire was not a signatory to CAT, there was no legal basis for the applicant to apply back to the Committee for protection against further acts of torture whilst in that country.

In Khan, the applicant was a citizen of Pakistan of Kashmiri descent. He said that he had been a student leader who had played an active part in demonstrations against the government. He claimed to have been arrested and tortured as a result of his activities.

The Committee found that there were substantial grounds to suggest that a political activist like the applicant would be in danger of torture, were he to be returned to Pakistan. This case developed the jurisprudence of Mutombo, focussing upon the risk of torture in itself. The level of risk was, once again, determined greatly by the objective evidence of the Pakistani authorities' recent human rights abuses and by the availability of cogent medical evidence which bolstered the applicant's credibility. There was no prolonged consideration of the issues which would arise in an asylum claim (i.e. questions such as: did the torture result from the applicant's membership of a particular social group?).

In Ismail Alan, the applicant was a Turkish citizen of Kurdish origin. He was a member of an illegal political organisation who was apparently arrested, detained and tortured by the Turkish authorities. The Swiss did not believe his account, and rejected his claim for asylum.

The Committee found that there were substantial grounds to suggest that the applicant would be in danger of torture, were he to be returned to Turkey. This case differed slightly from the Mutombo and Khan decisions, in that the Committee appeared to look beyond the general human rights situation in Turkey in determining whether the applicant was at risk of torture. There was more of a consideration of the applicant's ethnic background, his alleged political affiliation and the circumstances of his detention and torture.

However, this departure in principle is only superficial. The Committee noted that the 'general veracity' of the applicant was more important than the fact that he had not given a completely consistent account. It was true that Turkey was a signatory to CAT, and that the Committee had some doubts about the applicant's account; but Turkey's poor human rights record meant there was no guarantee that the Applicant would have redress against any further acts of torture, were he to be returned there. In short, Turkey's poor human rights record meant that if the applicant fitted roughly within the category of persons likely to be tortured, he was considered to be at risk of being tortured.

In Aemi, the applicant was an Iranian national. he sought refugee status in Switzerland on the basis that he was a member of an illegal political organisation and had undertaken activities for that organisation whilst in Switzerland. He feared that he would be tortured on his return to Iran as a result, but his claim was rejected by the Swiss authorities.

The Committee found that there were substantial grounds for believing that the applicant would be tortured, were he to be returned to Iran. Like Ismail Alan, the Committee were content to believe the applicant if his account was 'sufficiently substantiated and reliable'. However, the Committee were also prepared to accept that an applicant's activities in a host state could also lead to an increased risk of torture upon the applicant's return to his home country.

Conclusions

These cases may prove to be extremely useful to immigration lawyers. The language of these decisions strives to depart from the extremely subjective examination of evidence which often takes place in asylum proceedings. It is clear that the U.N. Committee Against Torture has consistently refused to place too much emphasis on credibility, even where there are clear inconsistencies in the applicant's evidence.

Furthermore, much greater emphasis has been placed on the general conditions of the applicant's home country and the factual risk of torture. More credence has also been given to detailed, objective and recent reports which show the nature and extent of a nation's human rights activities. It has been accepted by the Committee that protection for the applicant may not necessarily be guaranteed even if his home country is a signatory of CAT. Provided that the applicant falls within the broad category of persons who are considered to be at risk of torture, this may suffice. It is also important to note that the risk of torture may be increased by an applicant's activities in a host state, such as protests against a government policy.

These decisions suggest that the United Nations has been both cautious and generous in determining CAT cases. So far, the Committee Against Torture has been very willing to afford relief to applicants for fear of the consequences of torture. As a result, it has been very sympathetic towards them. It is to be hoped that the generous approach of the United Nations will be followed in the decisions of American courts.


The author, Andrew Dutton, is a member of the English Bar. He has an interest in international human rights law and in how it applies to U.S., Canadian and British immigration law.

He may be contacted either by e-mail at adutton@talk21.com or at Phoenix Chambers, 1st Floor, Gray's Inn Chambers, Gray's Inn , London, WC1R 5JA, UK.