BORDER AND TRANSPORTATION SECURITY POLICY
THE DEPARTMENT OF HOMELAND SECURITY
REGARDING A HEARING ON “THE CONVENTION AGAINST TORTURE”
BEFORE THE HOUSE SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY, AND CLAIMS COMMITTEE ON THE JUDICIARY
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.” 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.
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.
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. 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.
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. 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. 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.
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. 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.
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. Upon expiration of the statutory removal period, the Department has discretionary authority to continue to detain certain aliens subject to an administratively final order. 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.
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. 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.
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.