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Hearing on "Serious Human Rights Abusers Accountability Act of 2000"

Before the Subcommittee on Immigration and Claims

Thursday, September 28, 2000

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

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

My career as an attorney began in 1995, when I joined the INS through the Attorney Generalís Honors Program. As a Trial Attorney for the INS, I handled hundreds of cases where aliens claimed that they would be persecuted should they be forced to return to their home countries. In 1997, I began to represent the INS in litigation arising in the United States District Courts, a duty that eventually led to my appointment as a Special Assistant United States Attorney. In addition to my litigation duties, I was appointed Investigations Counsel, and worked very closely with INS Special Agents on arrest and detention issues. I also served as a legal advisor to the Examinations Branch, the branch of INS primarily responsible for alien benefits, and to the Detention and Deportation Section, the branch responsible for the actual removal of aliens. In late 1996, I began to handle the criminal alien docket in immigration court almost exclusively. I continued to handle the criminal alien docket until I left the INS in June of this year.

Due to my own familyís background and experience with persecution, I am very much in favor of laws that protect aliens who truly fear persecution and torture in their home countries. However, while serving as a Trial Attorney with the INS, I must admit that many of the cases I encountered involving aliens who sought protection pursuant to the Torture Convention were disturbing.

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

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

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

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

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

2. Applications for Torture Convention Protection are Plagued by Fraud

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

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

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

3. A Clear Definition of Torture is Needed

I believe that there must be clarification on the definition of torture, and a clearer

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

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

Furthermore, without a clearer definition of torture, its definition will inevitably vary from Judge to Judge, Circuit to Circuit, and the result will be a system of adjudication that varies depending on the Judge handling the case, and the Circuit in which the alien resides. While some may plausibly argue that the variance in the application of law between Judges and Circuits is a typical occurrence in our judicial system, I believe that as it stands, the lack of clear guidance on what constitutes torture will eventually create impermissible variance in the definition.

Perhaps a more serious consequence of the lack of a clear definition of torture is the fact that except for the difference in the standard of proof for establishing eligibility pursuant to the Torture Convention, such protection is becoming an extension of asylum, and in some instances, establishing eligibility for protection pursuant to the Torture Convention may be easier than asylum. This is because the granting of asylum relief is limited to persons who can establish that the fear that they face is on account of race, religion, nationality, membership in a particular social group, or political opinion. In contrast, Torture Convention Protection may be granted for any reason whatsoever. While an adjudicator in an asylum case can examine background materials such as State Department Country Reports to determine whether a country is inclined to and has engaged in persecution on account of one of the protected grounds, to my knowledge, there is nothing to assist the adjudicator with their determinations in cases where the cause for the fear is purely personal in nature. Furthermore, personal claims in general are harder for the INS to verify or refute and may be decided exclusively on the basis of the personís testimony. This, along with the fact that mere harm can amount to torture under the broad standard enunciated in the regulations, makes it easier to establish prima facie eligibility for Torture Convention Protection than asylum.

4. The Motions to Reopen for Torture Convention Protection Have Resulted in the

Further Delay of Proceedings

A recurring problem with immigration proceedings in general is the extraordinary endurance of such proceedings. It is not unusual for a case to take over five years to come to a final resolution. I was personally involved in a case that had commenced in 1983 and had still not been completed at the time of my departure from the INS. Such delays resulted from heavy immigration court dockets, numerous and lengthy levels of review, and the ever present motion to reopen. In cases that are ultimately denied by the Immigration Judge, an alien could depend on appeals that endure for years.

The motions to reopen pursuant to the Torture Convention have exacerbated this problem. These motions to reopen have created a situation where aliens who would not normally qualify to have their cases reopened now have an opportunity to do so. The problem with this is that once the case is reopened, the alien is not limited to seeking Torture Convention Protection. The result is the circumvention of the rules limiting motions to reopen, and delays in the proceedings. The alien virtually gets to start the case over, and if denied, the appeal will go to the bottom of the pile at the appellate level where it can expect to sit for many years. While I realize that this may be a temporary problem, I do not believe that there was any justification to allow any alien to use the Torture Convention to circumvent the restrictions on motions to reopen by allowing them to make other applications once their cases are reopened.

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

The United Statesí obligations pursuant to the Torture Convention will

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

Fortunately, however, there may come a time when circumstances in the home country change to a point where the alien can be returned thereto without violating our obligations pursuant to the Torture Convention. Similarly, there may come a time when it becomes possible to send the alien to a third country. However, there is currently no mechanism in place to periodically review such cases to evaluate whether aliens who have been granted such protection are still in need thereof.

This has long been a problem with regard to grants of withholding of removal. Aliens who are granted such relief are effectively without status. However, they remain in the United States indefinitely. I do not believe that it has ever been the intention of this Congress to allow persons carte blanche to remain in the United States when they cannot fully assimilate therein by becoming permanent residents, and eventually, U.S. Citizens. Nevertheless, this has occurred with aliens who have been granted withholding of removal, and there is no consistent effort to monitor these cases to determine whether withholding is still necessary. We must not allow this practice to continue in the context of persons granted Torture Convention protection.

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