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Board’s Decision in Gambian “Convention Against Torture” Case Raises Question About Proper Interpretation of State Department Report
by Carl R. Baldwin

On December 27, 2000 the Board of Immigration Appeals, by a 2-1 vote, dismissed an appeal by the INS of the decision of an immigration judge to grant an alien’s claim for withholding and deferral of removal under Article 3 of the "Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment" (CAT). The decision relied on evidence in the State Department’s 1998 Country Report on Gambia, and the majority and dissent strongly disagree about the proper interpretation of that report.

Article 3 of the Convention reads as follows: “No State party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being tortured. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant, or mass violations of human rights.”

The alien in the case had previously been found removable, and his application for asylum and withholding of removal had been denied by the immigration judge. His appeal of that denial had been dismissed as untimely. With removal imminent, he then moved to reopen proceedings, claiming eligibility under the CAT. The motion was granted, and at the reopened hearing the alien testified that he had beaten someone to death at a soccer match, and was wanted in Gambia for murder. He believed that he would be tortured if forced to return to Gambia. The immigration judge granted the alien’s application for withholding of removal, relying on evidence in the State Department’s Country Report on Gambia for 1998 that "the Gambian government had a reputation for physically abusing detainees held for political and security offenses."

Although respondent was wanted for a common crime, not for "political" or “security” offenses, the government’s bad reputation loomed large for the judge. And he observed: “Contrary to the Service’s assertions the Department of State’s Country Report makes no distinction between political prisoners and individuals who, like the respondent, are detained on legitimate criminal charges.” The Board agreed with the immigration judge, and held that it was “more likely than not” that the alien would be tortured if returned to Gambia. The dissenting judge disagreed with the majority’s reading of the State Department’s Country Report, and stated: “Contrary to the majority’s opinion, the country condition reports contained in the record make a distinction between political prisoners and individuals who, like the respondent, are detained on legitimate criminal charges.”

Who has the right reading of the country report, the majority or the dissent? I have reviewed the U.S. Department of State’s “Gambia Country Report on Human Rights Practices for 1998.” While hesitating to criticize a decision of the Board of Immigration Appeals, it seems to me that the dissent has a stronger argument than the majority. Wherever there is mention of the mistreatment of prisoners, the mistreatment is attributed to “security forces,” and the object of the mistreatment is either a political opponent or person suspected of anti-government activity. Here is an example:

“The Constitution forbids torture or inhuman or degrading punishment however, security forces sometimes beat or otherwise mistreated detainees and prisoners. In May an agent of the State severely beat opposition politician Lamin Waa Juwara in the presence of police. There were also reports that security forces beat military and security detainees, and that security prisoners sometimes are threatened with summary execution.”

The alien in the case at hand beat someone to death at a soccer match. By no stretch of the imagination could he be regarded, if arrested and detained in Gambia, as “security detainee” or opponent of the regime. The Convention Against Torture is a superb humanitarian instrument, but, in my opinion, it may not have been properly applied in the case at hand. Board’s decision in Gambian CAT case: http://www.ilw.com/immigrationdaily/cases/2001,0307-Kebbem.shtm


About The Author

Carl R. Baldwin graduated from Columbia University Law School in 1980, and became a member of the New York State Bar a year later. He worked for three years with the New York City Law Department, and then entered solo practice in immigration law, which he has continued to the present. His work with clients has included asylum applications, deportation defense, visa processing, adjustment of status, and naturalization. He has also worked to implement special laws, such as the 1986 "amnesty" (The Immigration Reform and Control Act), and the 1998 Haitian reform act (The Haitian Refugee Immigration Fairness Act). Mr. Baldwin is the author of Immigration News Monthly. He can be reached by e-mail at Carl.Baldwin@immigrationnewsmonthly.com.

He has written a book on immigration law, called "Immigration Questions and Answers," 1997, Allworth Press, 10 East 23rd Street, New York, NY 10010 (212) 777-8395. The book, which contains essential background information about how the immigration law works, can be ordered in both an English Edition and a Spanish version from www.amazon.com


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