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Testimony at the Oversight Hearing on

“Immigration Relief under the Convention Against Torture for Serious Criminals and Human Rights Violators”

before the Subcommittee on Immigration, Border Security, and Claims of the House Judiciary Committee

Submitted by: Regina Germain, Esq.

July 11, 2003

Chairman Hostettler, Ranking Member Jackson-Lee and Members of the Subcommittee:

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).

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.

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). 

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.    

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 judge to be ineligible for asylum or withholding of deportation.

A young man who was admitted to the U.S. as a refugee in 1994 was convicted of kicking a police officer in South Dakota when the officer was arresting him and several other individuals who were arguing in a bar.  The judge sentenced him to 10 years, but suspended the entire sentence, admonishing him to avoid places that sell alcohol and to pay restitution of $154.  There was no weapon involved and no serious injury reported.  He was detained by INS in April 1996 and was found ineligible to apply for asylum or withholding by the immigration judge.  

A man who had been severely tortured by security forces in his home country because of his political activities entered the U.S. as a refugee in 1990.  He was later convicted of involvement in a robbery involving $10 and possession of drug paraphernalia.  He was sentenced to just over five years and served three years and four months. He was found to be ineligible for asylum and withholding of removal. 

In conclusion, I would urge you to continue the United States’ commitment to the principle that no human being should be or deserves to be tortured.

  Thank you for giving me this opportunity to present my views.

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